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The judges made it clear in the Trap Grounds case that a village green is not that tranquil picture so often envisaged as life in the typical English village of cricket on the green. But instead can be an old bomb site, or even in one case a rock. This case had started in the High Court by an application by the registration authority Oxfordshire County Council and land owners Oxford City Council to determine a number of complex questions. The Judge in the High Court made some important findings, but was subsequently over turned by the Court of Appeal, in doing so they affectively prevented any village green from being registered. This left hundreds of cases on hold whilst the matter was expediated to the Lords, who then over turned the Court of Appeal decision on all the main points and in doing so reinstating the High Court findings.
Lord Hoffman noted the traditional village green as a creation of the literature of sensibility in the late 18th century and cited the green at Auburn, in the Deserted Village as the best example. This was a place where:
But as Lord Hoffman was quick to point out, the law 'took a more prosaic view of the matter'. And the 'village green' in issue was anything but idyllic. For example, the area contained scrubland with piles of builders' rubble up to a yard high, mostly covered in moss and undergrowth. As Lord Walker indicated, he had some unease about recognition of all or part of the land in question as a town or village green given that it was 'an over-grown, rubble-strewn, semisubmerged area, sandwiched between the canal and the railway in north-west Oxford'.
This came at an important time for Village Greens as the Government were introducing the consultation on what is now the Commons Act 2006 the final version of which is clearly effected by the view of the Lords, leaving as it does a much stronger overall village green registration regime. Below we set out some of the effects both positive and negative that comes from the Trap Grounds case.
The Lords had to answer some testing, up to date practical legal questions. These included: when did land become a village green; whether registration created any rights (and if so, what) and whether the registration authority had power to allow amendments to the application form and register an area of land different from that originally claimed.
The starting block has to be the 1965 Act which provided for the registration of common land and of town or village greens. By section 1(2)(a): 'no land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered'. Lord Hoffman considered that 'the effect of nonregistration was to extinguish such rights of recreation as may have existed by custom or statutory allotment and were registrable' when the measure took effect. Section 10 deals with the effect of registration. This provides that the registration under the 1965 Act of any land as common land or as a town or village green, or the registration of any rights of common over any such land 'shall be conclusive evidence of the matters registered, as at the date of registration'.
Section 22 of the 1965 Act sets out three types of green (as amended by the 2000 Act):
The question when does land become a village green is vexing and has caused many different views, Trap Grounds finally answers that question. Lord Hoffman agreed with Carnwath LJ in the Court of Appeal that since section 10 of the 1965 Act takes effect in relation to any particular land only on registration, there is no legal basis for treating that land as having acquired village green status by virtue of an earlier period of qualifying use. However, Lord Hoffman disagreed with the view of Carnwath LJ that user had to continue until the date of registration '. . .that would mean that any well-advised landowner, on receipt of an application to register, would erect barbed wire or take other steps to prevent the user from continuing, or at any rate continuing as of right.' Instead Lord Hoffman considered that the correct date is that of the application.
The Lords finally makes it clear that for the purposes of the Act the criteria must apply at the time of 'submitting' the registration application, and not as the Court of Appeal found at the date of actual registration, this is very important, because if the Court of Appeal position had been upheld then all a landowner faced with a registration application would have to do is to put up a sign prohibiting use of the land. As it now stands at the date of the application the lands status as a village green must be established but subsequent changes would be discounted. The 2006 Act though takes this point even further, under the new provisions when they come into force there will be two time periods when back dated applications can be made (see our main briefing for info).
Until the Trap Grounds case it was always assumed that w hilst the land became a village green and as such there should be no interference with the usage of the land for that purpose, that is it is a criminal offense to interfere or prevent the use, but that no actual rights were as a fact established. trap Grounds found that there were rights established, if there was a right to use the land, then it is clear that rights are as a fact established. This aspect as again been reiterated within the new provisions in the 2006 Act. In Lord Hoffman's view, the rational construction of section 10 of the 1965 Act is that land registered as a town or village green can be used generally for sports and pastimes "Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well." However, that does not mean that the owner is excluded from the land. The owner still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants.
A vexed question is can the registration authority allow amendments to the application. It seemed to Lord Hoffman that the registration authority should be "guided by the general principle of being fair to the parties ....... to insist upon a fresh application (with a new application date) if no prejudice would be caused by an amendment, or if any prejudice could be prevented by an adjournment to allow the objectors to deal with points for which they had not prepared." However, Lord Hoffman said he was adding two footnotes, in case of any doubt. There is no rule that the amended application must be for substantially the same land as the original application. Whilst if it relates to a larger or different piece of land, the inspector or registration authority may well think that fairness requires republication of a new application, the matter remains one for the exercise of their discretion.
This leaves it clear that amendments can be made particularly where if the amendment was not allowed it would simply result in a new application being submitted dealing with the amendment, and in doing so causing cost and delay to the parties and the registration authority. The registration authority has no investigative duty requiring it to find evidence or reformulate the applicant's case. It is entitled to deal with the application and the evidence as presented by the parties. It is important therefore that applicants go to considerable lenghs to ensure thatb they have dotted all the i's and crossed all the t's. That there case stands up to scutiny, albeit that if they find before the desion is finally made that one or another parts of thte site if looked at as a whole would defeat the application that they can apply to amend the application, by reducing the size of the application site, or even by moving it to another parcel of land altogether, but of course in doing so they run the risk of a negative impact on the decision makers. But generally it would b beneficial to take out parts of the site rather than lose the application altogether.
Lord Hoffman also agreed with the Court of Appeal that the registration authority is entitled, in the absence of any amendment of the application, to register only that part of the land which the applicant has proved to have been used for the necessary period. He reiterated that there is no rule that the lesser area must be substantially the same or bear any particular relationship to the area originally claimed. Therefore even if an application is not amended it is still open to the registration authority to register a lesser site than that set out in the application.
Planning Sanity - August 2006 (can be freely used by local communities within their campaigns. Publication by third parties is permitted providing acknowledgment of Planning Sanity is given)
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