Recent news on skateboarders applying to register the Southbank undercroft as a village green (frustrating redevelopment plans if they do) and the recent registration of a beach as common land show how unlikely areas used for recreation can gain legal protection.

Here we update on the most recent cases – the trend of decisions favouring applicants for registration seems to continue, sometimes with surprising results.

Beaches as Common Land

The Court of Appeal in Newhaven Port and Properties Limited v East Sussex County Council ruled that a tidal beach was registrable as a town or village green. A beach being within the concept of common land is not the only surprising aspect of the decision, which concentrates on the fairly technical question of whether the recreational use was permissive (and so not capable of being common land) or ‘as of right’. Interestingly –

  • Land can be a town or village green even if such use and protection is incompatible with the landowner’s statutory functions (in this case as a Port Authority)
  • Byelaws existed to regulate the use of the beach (dogs only on leads etc) but were not enforced and there were no signs on the beach to this effect. As no overt or positive act by the Landowner to enforce the byelaws was made during the relevant 20 year period, the Court held that recreational use was not with permission.
  • Some of the land was only uncovered for a few moments a day, and the boundary of the land on the seaward side changed constantly – this does not prevent registration. The qualifying recreational use does not have to be the sole or dominant use nor does it have to be physically possible over the whole area.

This case is under further appeal and a decision on appeal on human rights grounds is awaited.

Use as of right

In Barkas v North Yorkshire County Council, the Court of Appeal considered the distinction between use ‘as of right’ (necessary for registration), and use ‘by right’ (which would preclude registration) – this time the Landowners won. As the land was designated as recreational land under statutory powers the use was permissive so not a ‘green’. It did not matter that a wider pool of people used the land than originally anticipated when allocated for recreational use. It is always, therefore, worth investigating the manner in which land became recreational.

Rectify the Register

Finally, two Court of Appeal cases on the timing of applications to rectify the register may be useful in deciding whether to pursue such action.

A delay of 4 years (Taylor v Betterment Properties) between registration of the land as a village green and an application to rectify the register was not too long for the rectification to proceed.

On the other hand, (Adamson v Paddico) a 12 year delay in applying for rectification was sufficient to refuse the application for rectification. Allowing rectification where there was delay beyond the normal limitation period of six years would require very clear justification.

While the cases above do help to outline some principles, the legislation has yet to be fully considered and given the potentially disastrous consequences for developers and communities if the ‘wrong’ decision is reached, we can expect the fairly steady flow of cases to continue.

For a reminder of how to protect a landowners interests where there is recreational use of the land see our previous posting on commons land.