Town or Village Green Application Generates High Court Controversy

23/05/2018


Registration of land as a town or village green guarantees public access for recreational purposes and protects it against development. However, as a High Court case showed, it frequently generates controversy because it also greatly restricts the use to which land can be put, with a consequent impact on value.

The case concerned a local authority-owned 22-acre site that had for many years been used as playing fields by schools and sports clubs. A local campaign group applied for its registration as a town or village green under the Commons Act 2006, but faced stiff opposition from a school that held a 125-year lease over the site.

The council commissioned a non-statutory public inquiry into the application before an independent inspector, who recommended that the site should not be granted green status. He accepted that local inhabitants had used the site for recreational purposes for 20 years or more, but found that they had not done so as of right.

He reached that conclusion on the basis that clearly visible signs had been in place since the mid-1980s, warning members of the public against trespassing on the site. Those signs were sufficient to render local inhabitants’ use of the site contentious and the criteria for registration contained within the Act had thus not been met.

Registration of the site as a green had garnered a great deal of public support and hundreds of people had sent emails to the council supporting that course. The council’s Public Rights of Way and Greens Committee ultimately decided to reject the inspector’s recommendation and to register the site.

In upholding the school’s challenge to that decision, the Court noted that it was not a case in which a council had departed from an inspector’s conclusions on the basis of a justified difference in view about the relevant facts. The committee had given no adequate reasons for differing from the inspector and had failed, erroneously and unlawfully, to analyse the evidence or consider the legal significance of the signs.

The Court left the door open to further argument as to what relief should be granted in the light of its ruling. However, it noted that the council and the campaign group would face a very difficult task in persuading the Court that the committee’s decision should not be quashed.

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