Mainly for students: TVGs, easy as 1-2-3?

Dalee Kaur reviews recent town and village green cases to see if they have brought any clarity to an often confusing area of law Key points If land has a statutorily defined purpose which is not necessarily incompatible with use as a TVG, the land may be registered if it is still possible for the statutory function to be exercised. However, if the statutorily defined purpose is incompatible with the definition of a TVG, the land may not be registered Walking or jogging on a defined track which is situated on a potential TVG may be considered as “lawful sports and pastimes” There is no need for users to be spread throughout a locality in order to be considered a “significant number of inhabitants” A “locality” need not be legally defined (or be in existence) for 20 years, so long as the use by inhabitants has lasted for the requisite period of 20 years Town and village green (TVG) applications still continue to frustrate developers and landowners and appear in legal headlines. Section 15 of the Commons Act 2006 (“the 2006 Act”) allows anyone to apply to register land as a TVG where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years. This is the legal test to be applied for registration. There have been number of significant cases and changes in legislation which sought to clarify the application of the legal test for registering land as a TVG. The significance of registration is paramount for any developer or landowner because once registered, the land cannot be developed, and interference with the TVG could constitute a criminal offence. This article provides a summary of recent case law on the registration of TVGs under the 2006 Act and considers how such registration could affect landowners and developers. Locality In Lancashire County Council v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1238 (Admin); [2016] PLSCS 168 the county council (“LCC”) owned land adjacent to a primary school, in its capacity as local education authority. Janine Bebbington applied to register the land as a TVG. As landowner, LCC objected to the application. A planning inspector held a public inquiry and held that most of the land should be registered as a TVG. LCC applied for judicial review contending that: (i) the “locality” relied upon for registration did not qualify as it had changed within the relevant 20-year period relied on (ie the ward (which was the qualifying locality) had been abolished and a new one created); (ii) the applicant for registration needed to show that there was a geographical spread of users throughout the locality; (iii) the inspector ought to have found that the land was held for educational purposes and that registration as a TVG would be incompatible with that statutory purpose; and (iv) the inspector’s conclusion that use of the land was not “as of right” (ie without force, without secrecy and without permission) was irrational. The High Court dismissed the application and the TVG registration stood. The fact that the land was owned by a statutory body for an identified statutory function did not necessarily cause incompatibility with use “as of right” for public recreation. LCC could still discharge its functions after registration of the land, albeit not as it had originally intended (in this case, by use of land for sports or as an “outside classroom” rather than by building a school extension). The court found that the working of the legislation did not require a spread of users throughout the district. There is nothing in the 2006 Act requiring the locality to have existed for 20 years; the fact that the use by its inhabitants had to have lasted for that period did not mean that its legal definition had to have existed throughout that period. It fulfilled its task by defining the area to which the rights, if registered, attached. The registration of the land as a TVG was not irrational. It was clear that the question of implied permission and the significance of challenges to members of the public by teachers using the land for sport or other teaching had been fully considered. Statutory incompatibility R (on the application of NHS Property Services Ltd) v Surrey County Council [2016] EWHC 1715 (Admin); [2016] PLSCS 206 should be considered in light of the Lancashire case. NHS Property Services (“NHSPS”) sought judicial review of a decision of the county council (“SCC”) to register a woodland, which NHSPS owned, as a TVG. The land was held for defined statutory health-related purposes, although it had never been developed as such. NHSPS had objected to the application for TVG registration, arguing that there was an incompatibility between the statutory purposes for which the land was held and registration as a TVG. NHSPS argued that SCC had not dealt with this submission when reaching its decision. The court held that NHSPS’s objection to registration on the basis of statutory incompatibility was well founded. It was not necessary that the land in question was used for a purpose incompatible with use as a TVG. What mattered was whether, as a matter of construction of the relevant legislation, the relevant statutory purpose was incompatible with registration. The erection of buildings or facilities for health-related purposes would plainly conflict with recreational use. Use of land R (on the application of Allaway and another) v Oxfordshire County Council [2016] EWHC 2677 (Admin); [2016] PLSCS 287 is a cautionary tale for developers to carefully monitor the use made of their land. Mr Allaway and Ms Pollock challenged the decision of the county council to register a meadow as a TVG. They had intended to sell it for development. The claimants argued that: (i) the use of a circular path around the perimeter of the land should be disregarded in considering whether there had been use of the land for “lawful sports and pastimes”; and (ii) the inspector failed to properly consider and apply the qualifying requirement that the use needed to be by a significant number of those in the locality. The High Court dismissed the application. The court held that if the nature of the use of tracks cannot give rise to a presumption of a public highway, then such use could qualify as a “lawful pastime”. If no conclusion is easily forthcoming, then an objective test must be used: how would the use have appeared to the reasonable owner of the land? If the position is ambiguous, inference should generally be drawn for the less onerous right (the right of way) rather than the more onerous right (the TVG right). Use of a defined track situated on or traversing a potential green may be recreational use of the land depending on the result of the objective test above. In this case, the inspector found that the nature of the use made of the whole of the land, including walking on paths and dog walking as well as other seasonal activities, such as sledging, meant it was clearly used for recreation and lawful sports. Although the 2006 Act refers to “a significant number of inhabitants of any locality” the judge determined that there did not need to be “a spread of users” from the wider area. The number of users only needed to be sufficient to indicate general use by the local community. Confusion persists It is questionable whether the above decisions clarify the legal status of TVGs, or create greater ambiguity for developers and landowners. TVGs may be registrable in situations where developers might otherwise feel that registration was unlikely. Developers must take extra care in due diligence of potential development land to assess whether potential TVG rights have arisen in light of these cases. Why this matters Registration of a TVG generally means land cannot be developed and so it can have a significant effect on land value Interfering with a TVG may constitute a criminal offence Land with a statutorily defined purpose may not be protected from registration Tracks over land could give rise to a TVG right, as opposed to a right of way Land could be registrable even if only used by people in the immediate vicinity Who needs to know Landowners Developers Potential buyers Further reading A general overview of TVGs, what you can do on them and how to manage them: www.gov.uk/common-land-village-greens A guidance note on how to register TVGs, and goes into the TVG process: www.gov.uk/guidance/town-and-village-greens-how-to-register Leading cases R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31; [2014] 2 EGLR 115 R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council and another [2015] UKSC 7; [2015] EGLR 29 Dalee Kaur is a legal director in the real estate group at DLA Piper UK LLP