As previously noted, I have a particular interest in the law relating to the registration of new town and village greens and this is a topic upon which I am likely to write many more posts. In the absence of anything terribly new to write about at the moment this is a perfect opportunity to set out a little of the context in which the law on the registration of new greens operates. Whilst this topic may seem, to the uninitiated, relatively unimportant in the grand scheme of property law it is, in fact, an area in which there is a rapidly increasing amount of legal activity.
The relevant legislation
Originally new greens were registrable under the Commons Act 1965. There are still some applications proceeding under this legislation. However, the Commons Act 2006 has repealed the 1965 Act and section 15 of the new Act provides a more generous test which applicants have to meet (more generous because it permits the bringing of an application to register land as a new green even where the qualifying use of that land has stopped prior to the application whereas under section 22(1A)(a) of the 1965 Act use had to “continue” which was judicially interpreted by the House of Lords in Oxfordshire County Council v Oxford City Council – sometimes referred to as the “Trap Grounds Case” – to mean “continue until the date of the application”). Notwithstanding this obvious distinction, both pieces of legislation provide(d) for the registration of new greens on the basis of statutory prescription. The acquisition of rights by prescription is, of course, not limited to new greens: it is relevant to the creation of easements, profits and public rights of way too.
This is a very brief, general overview of the legislation. The statutory test is actually quite detailed and there has been much judicial scrutiny of it. I will endeavour to deal with more specific aspects of it in later posts.
The doctrine of prescription
The doctrine of prescription requires that qualifying use be “as of right”. This means that use must be nec vi, nec clam, nec precario (without force, without stealth and without permission) which is discussed briefly below in the context of a recent decision of the Court of Appeal in Lewis v Redcar. However, rather more is required, in the context of new green registration at least, than the simple tripartite test. Use must also, according to Lord Walker in R v City of Sunderland (ex parte Beresford), be trespassory. At one point it was suggested that qualifying users had to believe that they were using the application land pursuant to an imagined legal right to do so but the House of Lords in R v Oxfordshire County Council (ex parte Sunningwell Parish Council) rejected any suggestion that the subjective beliefs of the users was relevant. Following the Court of Appeal’s decision in Lewis v Redcar the qualifying users’ deference to the landowner’s use of his own land may well be a relevant factor in determining whether use is as of right because it has a bearing on the outward appearance to the reasonable landowner whether the qualifying use was an assertion of the legal right claimed. If the qualifying use were to give the impression to a reasonable landowner (an objective test) that the users were using his land as if by right, in the event that the landowner fails to take some action to stop the qualifying use he will be deemed to have acquiesced in it. This is an important aspect of the as of right test.
New green applications in context
Why have applications to register new greens become so popular in recent years? The answer is two fold. Firstly, the 1965 legislation introduced the first system of formal registration of town and village greens. There was a cut off date in July 1970 for the registration of greens which were already in existence (certain criteria had to be met). Thereafter, even land which may have qualified as a green at that time but which had not been registered would have lost the opportunity to be so registered. There were criteria provided in the legislation which enabled the registration of new greens coming into existence following the cut off date to be registered. However, the period of precriptive user was 20 years which meant that no application for registration could be made until after July 1990, less than 20 years ago. This explains why the law on the registration of new greens was unheard of until very recently, because it simply did not exist.
Secondly, the aim of any application to register land as a new green is to preserve a space which has been used by a community for informal recreation over a long period. Much of this land is becoming subject to proposed development. Where the local users have failed to prevent development through the usual process of objection to the planning authority, a successful application for registration as a new green has the desired effect. All registered greens are subject to the Inclosure Act 1857 and the Commons Act 1876 which, between them, prevent inclosure of or building upon a town or village green. Hence, new green aplications have become an effective weapon in the arsenal of the anti-development movement where there has been informal recreational use over the requisite period.
Procedure
All new green applications are made to the registration authority (a local council). Once received the authority will notify the landowner who will, almost certainly, object to the application. Both parties will put their case and if there is any contention then it is likely that a public inquiry will be held. This is usually held in the area local to the application site. It is common for a very experienced barrister (with expertise in the law of new greens) to be appointed to chair such an inquiry (s/he is called the Inspector) and the inquiry takes a similar form to a trial. There will be formal exchange of evidence, submission of legal arguments, opening submissions, examination and cross examination of witnesses on both sides and, finally, closing submissions. Whilst witnesses give their evidence unsworn, the process of examination and cross examination is essentially the same as one would see in a court room. Solicitors and barristers are frequently instructed to represent the parties and, given the technicality of the law in this area, this is to be recommended. Notwithstanding this, however, it is not uncommon for Applicants to appear in person because of the obvious problems of funding. Landowners are more likely to have access to the necessary resources and, in the protection of potentially valuable land, are more inclined to pay for properly qualified representation.
Once the public inquiry has closed the Inspector will write a report which is provided to the registration authority. The report will analyse all of the evidence and the legal arguments made by all parties and will make a recommendation as to whether the application should succeed or fail. Reasons will be comprehensively given. Registration authorities tend to follow the recommendation of the Inspector although they are not under any legal obligation to do so. Either of the parties may apply for a judicial review of that decision if they have grounds to do so.
Public inquiries can last for anything from a couple of days to a few weeks (rare though). The Inspector’s report can take a number of months to be produced. Not only does it require considerable work to put together a comprehensive report, the popularity of new green applications is keeping specialist practitioners very busy! The new legislation which makes it easier to apply for registration is only likely to increase this trend as is the increasing pressure upon local authorities to find space for new developments.
That’s it for now
There are very many components of new green law which provide interesting points of contention. These will be discussed in more detail in future posts but, for now, welcome to the law on new greens, albeit in very brief outline only!
Rowena Meager's Property Law Blog 
You refer to Trap Grounds. Trap Grounds ruled on when “a period of at least 20 years; … and continue to do so.” ended, but not when it started. The Highways Act 1980 s. 31 time test for a public highway is a fixed period; “without interruption for a full period of 20 years”. I bought my house in 1975. I have indulged in living there \”for a period of at least 20 years; and continue to do so.\”. What is the true construction and meaning of “a period of at least 20 years and continue to do so.” concerning when the period starts?
By: Christopher Whitmey on June 17, 2009
at 11:22 am
The time when qualifying use started is irrelevant as long as there has been 20 years or more of qualifying use and that use continues until the time prescribed by the statute. That time, under the 1965 Act, was interpreted by the House of Lords in the Trap Grounds case as being “continues until the date of the application”. The 2006 Act is more generous in that use which ceases before the date of the application (either 2 or 5 years depending upon whether qualifying use ceased before or after the commencement of section 15 of the 2006 Act) and which would consequently not have satisfied the 1965 Act criteria will now be sufficient (subject to all other parts of the statutory test being met) for the application to succeed.
My reference to applications not being possible until after July 1990 in my original post is not a suggestion that any particular start date is necessary in order to meet any statutory criteria. It was simply an observation that because the cut off date for registration of land that already qualified as a green under the 1965 Act was 31 July 1970, even land which would have qualified but in respect of which no application had been submitted would then cease to be registrable as a green (losing any claim to green status at that point which it might previously have had) and the only way in which it could subsequently acquire town or village green status would be to qualify under what became known as the class [c] green criteria. Because the cut off date for initial registration was 31 July 1970 no new class [c] green could come into existence until 1 August 1990 at the very earliest because until then the 20 years qualifying user requirement could not possibly have been met. The trap Grounds case provided a very interesting discussion on precisely this point as I am sure all “new green registration law enthusiasts” will be aware (issue (v) in the House of Lords), because the applicant in that case, following advice from the Open Spaces Society, had made an application on the basis that the Trap Grounds had become a new green on 1 August 1990 (the first possible date upon which qualifying use could have met the necessary criteria) despite the fact that the application was made almost 12 years after that date in June 2002.
The House of Lords, of course, ruled that an application on that basis could not succeed but the application to register the Trap Grounds nevertheless did succeed on the basis that qualifying use continued until the date of the application (overturning the rather perverse ruling of the Court of Appeal).
By: RM on June 17, 2009
at 8:10 pm
I would agree that the Trap Grounds Court of Appeal judgement can be dubbed perverse.
However your “time when qualifying use started is irrelevant as long as there has been 20 years or more of qualifying use” raises an interesting question. If ‘irrelevant’ why did not the 1965 Act section 22(1) just say, “as of right for a period of twenty years.” instead of “as of right for not less than twenty years.”?
Earlier in the 1965 Act it said, “Disregard of certain interruptions in prescriptive claims to rights of common 16.—(1)(b)(ii) (ii) in computing the period of thirty or sixty years mentioned in section 1 of that [Prescription] Act [1832]. …”.
As well as the 1832 Act the drafter had a precedent for a fixed period of 20 years — concerning public rights of way in the Rights of Way Act 1932: now Highways Act 1980.
Possibly Baroness Hale in Trap Grounds was near the mark when she said, “145 The final issue was not on the examination paper at all, but it is relevant … [the] essence of the very expression “town or village green” … I myself have considerable sympathy for the views expressed by my noble and learned friend, Lord Scott of Foscote. The very powerful points made by my noble and learned friend Lord Hoffmann in paragraph 39 of his opinion depend to a large extent on events since the 1965 Act was passed rather than on the meaning of the phrase at the time when it was enacted. I believe that it would be much better for us to leave this issue to be properly fought out on another day.”.
A court still has to pronounce on the meaning of “not less than twenty years”. As a matter of plain English, let alone symmetry within the Act, it surely cannot mean ‘a fixed period of twenty years’: which is the way most inquiries regard it. The Commons Act 2006 has not altered ‘not less than’: as you say, only moved the end date to a maximum of 2 or 5 years before the date of the appliaction.
By: Christopher Whitmey on June 22, 2009
at 3:29 pm
For the purposes of clarity it is worth mentioning for the benefit of other readers that reference (above) to Baroness Hale’s dictum at para [145] in the Trap Grounds is nothing to do with the “20 years user” issue. That observation was concerned with the characteristics of land which could become a new town or village green. This was particularly relevant in the context of the Trap Grounds case where 75% of the land with which the application was concerned was “inaccessible”.
Turning to the proper interpretation of the phrase “as of right for not less than twenty years”. That is, indeed, the wording which was used in the 1965 Act. For completeness, it is worth noting that the 2006 Act uses the following terminology: “as of right … for a period of at least twenty years”. I would regard the distinction between the two phrases as being a matter of semantics. What both require is that there be “at least twenty years user” in order to succeed. That is not to say there cannot be considerably more than twenty years user, but anything less than that will not do. Of course, all of this is subject to the need for qualifying user to continue until the date prescribed by the statute (which, as has been noted above, is the date of the application in relation to applications under the 1965 Act and no more than 2 or 5 years before application under the 2006 Act depending upon whether user ceased before or after the commencement of section 15 of the 2006 Act).
As for the point that most inquiries interpret the “twenty year user requirement” as a fixed period of twenty years, I would simply say it is moreorless inevitable that they will do so. If there is a date until which use must have continued then simple logic dictates that the twenty year period immediately preceding that date will be the relevant period. Anything beyond that (thereby extending the duration of user relied upon) is completely unnecessary in order to succeed in an application. So, even if there has been 50 years qualifying use, all that is necessary to satisfy the legal test is that there be twenty years qualifying use. There is little point in going to the time, trouble and expense of “proving” (to the requisite standard) that use extends beyond the necessary period.
By: RM on June 24, 2009
at 1:55 pm
May I respectfully correct one of your statements?
“If there is a date until which use must have continued then simple logic dictates that the [not less than/at least] twenty year period immediately preceding that date will be the relevant period.”
I think the matter best now left until a court pronounces 😉
By: Christopher Whitmey on July 30, 2009
at 11:35 am