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ENFORCEMENT OF VILLAGE GREEN RIGHTS

One of the most difficult areas within the law relating to village greens is the ability to enforce violations of the publics rights and other infringements, there seems to be a concerted failure of enforcement authorities to want to take appropriate action, or indeed any action, therefore few if any infringements are ever prosecuted.

The two main pieces of protective legislation comes from the Victorian era, that of Section 12 of the Enclosure Act 1857 which makes it a criminal offence to cause injury or damage or the interruption of the enjoyment of the use of the village green as a place for exercise and creation. And Section 29 of the Commons Act 1876 which relates to the encroachment onto or inclosure of a green, as well as the interference with or occupation of the soil unless it is with the aim of improving the enjoyment of the green.

So who are the policing authorities, in as far as Section 12 of the 1857 Act is concerned then action can be taken by any of the following a Church Warden, the Owner of the green, Parish, Community or District/Borough Councils. In both the above instances, legal action would be brought in the Magistrates Courts. In the case of Section 29 of the Commons Act, 1876, the process is the same as for the Inclosure Act, but an action can also be brought by any inhabitant of the Parish. The likely outcome of any successful prosecution in the Magistrates' Courts would be a fine upon the person responsible for the encroachment or works.

The owner of a green cannot do anything that interferes with the lawful recreational activities of the local inhabitants.

Many council owned greens are maintained under the provisions of the Open Spaces Act 1906 by putting in place by-laws, or alternatively by a scheme of regulations under the Commons Act 1899. There is though no obligation on private green owners to maintain greens.

Inclosure Act 1857 (Section 12): Under this section, it is a criminal offence for any person to damage any fence of a town or village green; or wilfully and without lawful authority put animals or cattle on the green; or wilfully to place any materials upon the green or do anything to interrupt the use or enjoyment of the green as a place for recreation and enjoyment. Offences are summary in nature and are tried in the Magistrates' Courts.

Section 12.
Protecting from nuisances town and village greens and allotments for exercise and recreation.
And whereas it is expedient to provide summary means of preventing nuisances in town greens and village greens, and on land allotted and awarded upon any inclosure under the said Acts as a place for exercise and recreation: If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof before two justices, upon the information of any churchwarden or overseer of the parish in which such town or village green or land is situate, or of the person in whom the soil of such town or village green or land may be vested, forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding level 1 on the standard scale; and it shall be lawful for any such churchwarden or overseer or other person as aforesaid to sell and dispose of any such manure, soil, ashes, and rubbish, or other matter or thing as aforesaid; and the proceeds arising from the sale thereof, and every such penalty as aforesaid, shall, as regards any such town, or village green not awarded under the said Acts or any of them to be used as a place for exercise and recreation, be applied in aid of the rates for the repair of the public highways in the parish, and shall, as regards the land so awarded, be applied by the persons or person in whom the soil thereof may be vested in the due maintenance of such land as a place for exercise and recreation; and if any manure, soil, ashes, or rubbish be not of sufficient value to defray the expense of removing the same, the person who laid or deposited such manure, soil, ashes, or rubbish shall repay to such churchwarden or overseer or other person as aforesaid the money necessarily expended in the removal thereof; and every such penalty as aforesaid shall be recovered in manner provided by the Summary Jurisdiction Act 1848; and the amount of damage occasioned by any such offence as aforesaid shall, in case of dispute, be determined by the justices by whom the offender is convicted; and the payment of the amount of such damage, and the repayments of the money necessarily expended in the removal of any manure, soil, ashes, or rubbish, shall be enforced in like manner as any such penalty.

Commons Act, 1876 (Section 29): Under this section, encroachments or enclosures, or the placing of any structures upon town or village greens, are a public nuisance. Work carried out with a view to better enjoyment of the town or village green or recreation ground (i.e. linked to enhancing its recreational use) is not unlawful.

Section 29.
Amendment of law as to town and village greens.
An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section twelve of the Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned.

This section shall apply only in cases where a town or village green or recreation ground has a known and defined boundary.

How does the Rights of Way Act 2000 and the Commons Act 2006 alter the regulatory process.

Vehicular Access: Section 68 of the Countryside and Rights of Way Act, 2000 permits the grant of statutory easements for vehicular access over land (including common land and village greens) where it is currently an offence to drive a vehicle, subject to certain qualifying criteria being met. Regulations now made by the Secretary of State include provisions for the grant of easements, compensation to be paid by the property owner to the landowner, dispute resolution procedures, etc. However, the Commons Act 2006 has recinded that provision, therefore it is once again be an offence to drive a vehicle onto a registered village green.

With the introduction of the 2006 Act the appropriate national authority (Secretary of State in England and National Assembly in Wales). Illustrations of an offence would be agricultural encroachment. So whilst the Magistrates will still be used for local prosecutions, it will also be possible for action to be taken by the Secretary of State. This will be by first serving a notice on the offender and land owner, and if the notice is not complied with by an application to the County Court for an order requiring compliance, we await the publication of the regulations to see exactly how this will be applied.

The process for making a complaint to te Magistrates is quite straight forward, you simply go to the Magistrates Court armed with information relating to the alleged offence, and request that a summns is issued. This in effect means that you will have to persuade a Magistrate that you have a reasonable case against the offender. If the Magistrate agrees and issues the summons, then the person alleged to have committed the offence will appear before the magistrate and you will have to prosecute (that is set out your case against the offender). Most magistrates courts have a period set aside for such aplications, in the larger courts this will be on a daily basis, with a hearing in chambers before the District Judge, in smaller courts this will often be only on one day a week and then in open court. Whilst you could in theory just turn up out of the blue and wait for a slot to go before a magistrate, it is clearly best to find out what the practice is in your local court and request an appointment.

In terms of enforcement though we still await the publications of the regulations under tthe 2006 Act we will then update this briefing with any relevant information.