Growing greens

The case of Trap Grounds is one of many hitting the courts involving the registration of village greens. By Vivian Chapman

The Trap Grounds is nine acres of undeveloped land in North Oxford. One-third is reed beds permanently underwater. The rest is rough scrubland. The approach to the Trap Grounds is by an unmade track known as Frog Lane. Nobody knows the origin of the name of the Trap Grounds. It could derive from the use of the land for trapping birds or eels, for parking horse drawn traps attending the local races at Port Meadow or for dumping the contents of college privies, or ‘traps’. The land seems insignificant, but the dispute about it went to the House of Lords in the case of Oxfordshire County Council v Oxford City Council (2006).

The reason for the dispute was because a local resident applied to the county council to register the Trap Grounds as a new village green, but the grounds are owned by Oxford City Council, which wishes to develop them. Such applications have given rise to much recent litigation, including two cases that also went to the House of Lords: R v Oxfordshire County Council ex parte Sunningwell Parish Council (2000) and R (Beresford) v Sunderland City Council (2004).

Anti-development tactic?

The reason why applications to register new greens have become a hot legal topic is because local campaigners have been using them as a way of preventing development. Since the registration of new greens was introduced by the Commons Registration Act 1965, both the courts and Parliament have made it easier to register new greens and so have turned registration into a powerful anti-development tactic. The House of Lords’ decision in the Trap Grounds case marks a major further step in this direction.

What is a new village green?

Under the 1965 act (as amended by the Countryside and Rights of Way Act 2000) a “new village green” is land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes. This seemingly simple definition has given rise to numerous problems. Many have now been resolved by the House of Lords:

– the 20 years must be the 20 years immed-iately before the application;

– a ‘locality’ must be some division of the county known to the law, such as a parish or manor;

– ‘lawful sports and pastimes’ includes informal recreation such as walking the dog and children’s play;

– recreational use need continue only to the date of the application. An application cannot be defeated after it is made, such as by preventing local people from using the land.

The effect of registering a new green

In Trap Grounds, the House of Lords also made important rulings on the effect of registering a new green. Upon registration (but not before):

– local people acquire the right to use the new green for general recreation, irrespective of the particular type of recreation enjoyed, during the 20-year period;

– the land becomes subject to the Victorian statutes (Inclosure Act 1857, Section 12, and Commons Act 1876, Section 29), which make it a criminal offence to build on greens.

Human rights

In the Trap Grounds case the House of Lords held that the registration of a new green did not breach the landowner’s human rights, notwithstanding the serious effect on the land value.

How disputes are resolved

The Commons Registration (New Land) Regulations 1969 govern the procedure for registering new greens. An application is made on a standard form to the registration authority, which publicises the application and invites objections. However, the regulations do not explain how disputed applications are to be resolved. Registration authorities usually appoint a professional lawyer who is an expert in this area of law as inspector to hold a non-statutory inquiry and to prepare a report and recommendation, which is almost invariably accepted. The House of Lords approved this practice. It said the procedure should be as simple and non-technical as possible, while being fair to all parties. Applications can be amended or withdrawn if appropriate and the authority can register part of the application land if satisfied that only part is a new green. Thus, in the Trap Grounds case, it was proper for the inspector to recommend registration of the scrubland but not the reed beds, which are not used for recreation because they are under water, or Frog Lane, which is used for access rather than recreation.

Commons Act 2006

Section 15 of the Commons Act 2006, which has not yet been brought into force, will again make it easier to register new greens:

– there will be a two-year breathing space after recreational use of land ceases to make an application;

– where recreational use ceased before the new act comes into force, there will be a five-year breathing space to bring an application, unless planning permission was granted and development started before 23 June 2006;

– in calculating the 20-year period, any period during which access was prohibited by statute is disregarded; and

– once the 20-year user period has run, the landowner cannot prevent registration by giving local people permission to use the land in an effort to render use permissive rather than ‘as of right’.

Outstanding issues

Not all legal issues have been resolved. Two of the most important are outstanding.

First, what is meant by a neighbourhood within a locality? Lord Justice Hoffmann said a neighbourhood need not be within a single locality, but the House of Lords gave no guidance on the meaning of ‘neighbourhood’. The only guidance is the first instance decision in R (Cheltenham Builders Ltd) v South Gloucestershire District Council (2004), where the judge said that a “neighbourhood” cannot be just a line on the map, that it must have some cohesive quality other than mere proximity to the claimed green.

Second, can land be registered as a new green if it is used both by the landowner for his own purposes and by local people for recreation? Hoffmann LJ comments that use by the landowner may be relevant to the question of whether they would regard persons using it for sports and pastimes as doing so ‘as of right’. Such recreational use does not have the appearance of the exercise of a right, which is the essence of prescription. It is very common for school playing fields to be used by local people for informal recreation when not in use by the school for formal games. It would be odd if such land could be registered as a new green, thereby conferring general recreational rights to local people over the whole of the land with the consequent right to interrupt formal games.

The Trap Grounds decision makes it much easier to register new greens. However, given the value of potential development land that can be sterilised by registration, it is unlikely that the torrent of litigation will stop.