Why Greens aren't always good for you

A new “trap” has been set that may catch out purchasers of land for development. A recent court ruling means that land can become a common or town or village green – thereby preventing development – without first having to be registered.

Before acquiring a site for development, your solicitor will carry out a commons registration search, which will reveal whether the land has been registered as a green. If an entry in the register of greens is revealed, development or use of the land will be prevented unless it is aimed at improving the land for recreational purposes. It is likely the only way development would go ahead is if the registered green can be incorporated in a larger development as public open space.

A purchaser must also be alert to the possibility of residents, on hearing of a proposed development, applying to register the site as a green. To do so they would have to show it was “land on which a significant number of inhabitants of any locality (or neighbourhood within a locality) had indulged in lawful sports and pastimes as of right for not less than 20 years”.

Notably this definition makes no reference to the land having to be grassed or in any way resemble the quintessential English village green. “Greens” can be found, or at least claimed by locals to exist, surprisingly close to town centres.

Historically, it was the case that locals had to show they believed they had a legal right to use the land and, knowing that they did not own the land, there were, as a result few successful village green claims. However, the test was examined in 2000 by the House of Lords in the leading case of “Sunningwell” (R v Oxfordshire County Council and Oxfordshire Diocesan Board of Finance ex parte Sunningwell Parish Council), and it was held that the claimant’s belief was irrelevant. Although the owner’s specific consent to use the land would negate any claim, mere tolerance would not.

The Lords also rejected the suggestion that at least one formal sport must have been played on the land. Informal recreation such as dog walking, kite flying, playing with children and the like was deemed sufficient for modern times.

Setting traps

However, the 2004 case of Oxfordshire County Council v Oxford City Council and Robinson (the “Trap Grounds” case) has thrown up an additional hazard for the unwary purchaser. The case involved an application to register a piece of land – known as the “Trap Grounds” – as a village green. The court ruled that land can be a green, whether or not it is registered, as long as it meets the criteria mentioned above. Although registration provides conclusive evidence, it is optional; the locals’ right to use the land continues, notwithstanding a failure to register.

What is more, the 20 years’ use, which the locals have to demonstrate, does not immediately need to precede an application for registration. Provided that the 20-year period runs beyond 31 July 1970 (a statutory time limit imposed under the Commons Registration Act 1965 for registering greens existing at that date), a green can exist and potentially be registered, even though the land may have been developed for up to 30 years or more.

In law, a ‘green’ does not have to be grassed or in any way resemble the quintessential English village green

The only help comes from the Countryside and Rights of Way Act 2000, which states that if the 20-year period is reached after 30 January 2001, use as a green must continue up to the date of application for registration.

Remedies and sanctions

A landowner developing or in any way obstructing land that is a green could be faced with injunction proceedings, with the self-help remedy of abatement (whereby a local could go on to the land to remove fences to allow continued recreational use) or even with criminal sanctions. Nineteenth-century legislation makes it a criminal offence for any person to do any act that injures a green or interrupts its use or enjoyment as a place for exercise and recreation and, although it is unlikely criminal prosecution would result – except where a landowner knew of the existence (or likely existence) of a green prior to development – the threat remains.

Where land has already been developed the courts are unlikely to issue an injunction requiring buildings to be demolished except where there has been a knowing and cynical breach or disregard for others’ rights. But if locals act quickly, they have a chance of persuading the courts to halt construction while it is decided whether they have a valid claim for use of the land as a green – a costly scenario a developer will be anxious to avoid.

Caveat emptor

Although the Trap Grounds case may still be overturned by the Lords, the current ruling means that when acquiring sites, particular care should be taken not only to inspect the site and make enquiries about its current use, but also to enquire into the historic use of the site. In cases of uncertainty, a buyer would be advised to seek an indemnity from its seller or take out indemnity insurance.

Be warned. Failure to carry out adequate investigations could result in a nasty surprise being sprung by local residents.