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How common is your land?

29 April 2010

By Andrew Gough – partner and head of commercial property

PRESS FEATURE for South East Farmer

So you think you’ve got it made.  You own land at the edge of your village. Perhaps it’s agricultural land used occasionally for grazing or a crop but there’s a good chance of getting planning permission for development.

You’re aware the public use it for recreation even if you farm it but as the boundaries are quite clear there’s no problem about identifying the extent of your ownership.  All you need is a developer willing to fund a planning application.

Alas, things are never that simple. The land could be the subject of an application to register a new town or village green status, effectively preventing its development. If you’re a potential developer don’t rush in without considering the possibility.  Recent decisions by the House of Lords and Supreme Court have made it easier to register new greens and have also set out the consequences of registration.  Landowners will therefore need to take active steps to exclude recreational trespassers.

The Background

Section 13 of the Commons Registration Act 1965 introduced the concept that land could be registered as a new green if it had been used ‘as of right by inhabitants of any locality for lawful sports and pastimes for more than 20 years’.  This was subsequently replaced by Section 15 of the Commons Act 2006, making it clear that:

  • the 20 year period is normally the 20 year period immediately before the date of the application but
  • this could be altered by S15(3) of the act in cases where cessation of use occurred after April 6, 2007, provided that the application was made within two years of the cessation of use or
  • by S15(4) where the use ceased before April 5, 2007 but an application was made within five years of the cessation of use unless planning permission was granted before June 23, 2006, and works had commenced making the land permanently usable for lawful sport and pastimes

Section 98 of the Countryside and Rights of Way Act 2000 further established that if use were by a significant number of local people from any neighbourhood within a locality, this constituted ‘inhabitants of any locality’.

Three significant House of Lords/Supreme Court decisions made it easier to register new greens, and applications have been submitted - often with the motive of preventing development.

Lower court decisions have endeavoured to apply restrictions on registrations of new greens and development. In the case of R (Laing Homes Ltd) v Buckinghamshire County Council, the court ruled that if there were a material conflict between the recreational use of the land by local people and the use of the land by the landowner – so local people “deferred” to the land owner - the use could not be ‘as of right’.

Landowners were therefore given a defence if they could prove deference to their ownership.

In the recent case of R (on the application of Lewis) v Redcar and Cleveland Borough Council, the Supreme Court appears to have rejected this.  Here the council-owned land - used as a golf course - was also used by the locals for informal recreation but they avoided walking on the course when play was in progress.

The landowner wanted to develop but objectors applied to register it as a new green.  Following a public enquiry, the Common Registration Authority rejected their application but the Supreme Court allowed the appeal, ordering the land to be registered as a new green. 

There are two core points to this judgment*:

1.By registering land as a new green, would the recreational rights of local people override the landowner’s rights?  The Supreme Court held no.  Local people would have a general right of recreation on the new green but registration wouldn’t detract from the landowner’s use the land in the way he had used previously

2.Did deference prevent enjoyment?  The answer was NO.
 
So if your land has development potential – or you’re interested in buying land to develop –find out its current use.

For further information contact Andrew Gough on 01227 763939.

 

 

 

Notes to editors

* judgment: please note that this is the correct spelling in this context.

Established in 1725, Furley Page Solicitors has offices in Canterbury, Chatham, Whitstable and Lloyd’s of London, offering legal services across wide-ranging practice areas in commercial and private client law. It is led by 21 partners and supported by more than 100 legal staff. Furley Page is recommended by Chambers and the Legal 500. Furley Page is authorised by the Financial Services Authority to offer independent financial advice.

 

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