We have previously posted on the potential pitfalls for developers arising because of Commons legislation. No developer of land historically used for leisure activities by the public can afford to ignore the risks of commons registration, as the Courts are currently interpreting the legislation in favour of the users of the land (not the owners). A recent case decided in favour of the developer is limited to a particular set of circumstances and was based on clear legislative intent.

Highlighting the general trend is the case of Leeds Group Plc v Leeds City Council, which has recently been subject to a challenge in the Court of Appeal. The decision of the High Court has been upheld, so it is still the case that residents who can apply for registration of land as a common or village green may include those from a number of different neighbourhoods as well as residents from a single locality. As we have previously posted, this means an increase in the pool of potential applicants for registration of land as a village green.

The developer also argued that because relevant legislation allowing the ‘neighbourhood’ class of persons to apply for registration came into force on 30 January 2001, the 20 year period of use needed to acquire rights should run from this date. The Court of Appeal disagreed. Firstly, any recreational use should put a landowner on alert that a right may be being asserted. Secondly, the Court did not consider that it was Parliament’s intention that this class would have to wait 20 years from 30 January 2001 to be able to assert their rights.

This decision could be criticised on the basis that legislation should not have a retrospective effect, but for now it stands.

The 2011 case of Barratt Homes v Spooner in the High Court showed that even registration of land as a common or town or village green does not constitute absolute protection. Here, land had been appropriated by the Local Authority for planning purposes then sold to Barratt – planning was granted and work duly commenced.

An application had been made to register the land as a village green and an inquiry took place after commencement of the development. The inspector recommended registration as a village green.

Barratt argued that, if land has been appropriated or compulsorily acquired by a Local Authority for planning purposes, it can be used by any person in conformity with planning permission notwithstanding the law on common land and town and village greens. The High Court agreed with Barratt – because of section 241 of the Town and Country Planning Act 1990, the combination of compulsory purchase/land appropriation together with the grant of planning trumps the registration of the land as a town or village green.

Whilst the Commons Act 2006 makes it easier to register land as a town or village green, it has not changed the effect of registration, and the balance of interests (between the public interest in using the village green and the public interest in developing land acquired by the local authority and being the subject of a planning permission) remains the same.

As mentioned, however, this case is limited to a particular set of circumstances which are set out in legislation and should not be taken to be a reversal of the trend of user-friendly decisions by the Courts.