This is a hot topic in that a number of developments are currently being delayed/called into question by claims that the site is common land or is a town or village green. Developers need to take care when they plan to develop land that has been used by the public for their recreation.

Why? That land may turn out to be a town or a village green that cannot be built on in perpetuity. The land that the town or village inhabitants have been using for their sports and pastimes is regarded as belonging to that community for the benefit of that community.

‘Sports and pastimes’ can include informal activities like dog walking and frisbee throwing. Sites particularly at risk are areas of unfenced open land close to communities that have been using the land without permission.

The Commons Act 2006 regulates greens and common land, and is slowly being brought into force. It will not operate in a way to make life any easier for developers. It is replacing the Commons Registration Act 1965.

Common land is not particularly controversial, but the new laws for town and village greens are already proving troublesome for developers. Land owners hoping to sell for development and potential developers need to be aware of a number of risks arising for land that has been used for recreation by the locals.

  • A group of individuals can apply to register any land as a town or a village green where that land has been lawfully used for sports or pastimes for at least 20 years by a significant number of people in the locality of that land.
  • The group does not need to have had permission to use the land for their use to be lawful.
  • Even if the group has been stopped from using the land in the past two years, they may still have the right to register the green. There are some very complex transitional provisions giving a longer period to people who had their recreational use stopped before 6 April 2007.

We have seen a reported case on the subject Lewis, R v Redcar and Cleveland Borough Council involving a proposed development by housebuilder Persimmon on a former Council golf course that was also used by locals for dog walking, and whose children played there—although they deferred to the golfers golfing. Although the developer won in this case and the land was not registered as a green (because the locals’ rights as a result of deferring to the golfers was limited or qualified), it took many years of litigating the old and new law to get to that conclusion; and during that time, the market for housing development has changed radically!

We have been involved in acquisitions of development land that have been held up by unanswered questions over informal use of the land, and whether it is at risk of being registered as a ‘green’.

Can developers do anything to avoid the uncertainty? It is not easy to avoid the uncertainty of knowing whether a group of local people will apply to register a green on land that a developer wants to build on, but:

  • When buying development land, carry out full investigations as to land use
  • Consider whether any title insurance policies could help back off some of the risk if land has habitually or sporadically been used for sports or pastimes
  • If the use of the land for sports or pastimes is recent, it may be wise to fence the land off to prevent the use long before the sale, although this may not be a guarantee that the land will not be registered as a green. However, users of the land have two years to register a green (unless use ceased before 6 April 2007, when they have five years).

As ever, the facts of any specific case will determine the best course of action, but this is a problem that cannot be ignored.