Common Land and Town and Village Greens – the Give and Take Principal

PUBLISHED 12.04.21

 

When purchasing property (especially if you are purchasing property for development), there are many potential issues to be aware of. One that could have a significant affect on your ability to build upon or even use your property to its full value is the issue surrounding Common Land and Town and Village Greens.

What is Common Land? Statute defines Common Land as “land that is subject to rights of common, whether those rights are always exercisable of during limited periods”. Essentially, land is owned by one person and another person has rights over it. Generally, a right of common is a right to use or take something that is produced naturally on land belonging to another. Whatever is not used or taken belongs to the owner of that land (examples include grazing and removing sand gravel or minerals from another persons land).

What are Town and Village Greens? Generally, town and village greens are an area of open space that has been used by inhabitants of a locality for the purposes of recreation and playing games. Since the introduction of the Commons Act 2006, a requirement to register a town or village green is to demonstrate that “a significant number of the inhabitants of any locality, or neighbourhood within a locality, have indulged as a right in lawful sports and past times on the land for the period of at least 20 years”. The rights that relate to town and village greens have never been defined, however, generally these are thought of as the rights to recreation and playing games in a given area.

As you may be aware, a simple search with the local authority relevant to the property will confirm whether or not any Town of Village Greens are registered in respect of the property in question. This will give you good idea if anything of this nature will affect the use of the Property that you are purchasing or acquiring an interest in. It is, however, extremely important to note that new town and village greens are still registerable. A recent case known as TW Logistics Ltd v Essex County Council and Ian Tucker has settled the assumption that to register a town or village green, the area does not necessarily need to be a rural area providing a place for locals to undertake recreational activities (see https://www.supremecourt.uk/cases/uksc-2018-0234.html for further information). The land in this case was a concrete strip that the owners used to drive over when travelling to and from a working commercial port and at the same time, local inhabitants would use the area for recreational activities such as “walking dogs and stopping to chat”. The land owner appealed against the registration as part of the property being designated as a Town and Village Green on the basis that if the registration was allowed, it would criminalise their legitimate use of the property. The landowner stated that the use of the land by the locals was not “by right”.

The ruling by the Supreme Court decided against the appeal of the land owner. It was held by the Court that both activities, that of the land owner and that of the locals, could co-exist and as such the registration as a Town and Village Green was upheld. The decision reconciled the landowners’ legitimate use with the locals’ recreational rights. The principle of “give and take” was mooted by the Supreme Court. The locals would need to exercise their rights over the land in a fair and reasonable way whilst respecting the established use by the landowners.

This case highlights the need to make clear and extensive enquiries regarding third party rights over any potential property that you decide to purchase and, in particular, where such rights have been exercised and clarification on the duration and extent of any such rights. As is emphasised in this case, an application for an area to be designated as a Town and Village Green, due to the members of the locality use of that property for recreation, can be made at any given time providing that rights have been exercised for a period of time. Any such application will not be prevented on the basis of any existing use by the land owner.

If you would like any advice or guidance regarding Common Land, contact Sara Mahany of our Commercial Property department on 01392 285047 or email Sara on s.mahany@dunnandbaker.co.uk.

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