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Usage of Greens
Lawful Sports & Pastimes What Does This Mean
It is important to demonstrate what the usages are and the extent of the usages as part of the registration process. This means that you must show that the inhabitants have used the land for a variety of purposes over the full lengh of the statutory 20 year period to have a successful application to register the land. This is in the modern sense of pastimes as opposed to the traditional village green May Pole Dancing or Cricket, although both those pastimes would be acceptable usage.
The list of potential usages is vast, and covers most peoples leisure activities, however, some activities might be classed as anti-social and therefore potentially unlawful and therefore don't count towards usage. It should also be kept firmly in mind that usage that is consistent with that of a footpath are not counted (more on that below). We have had residents talk of 'tadpole dipping' and the 'gathering of fruit' (again more on fruit and other produce below) as well as a vast number of other activities.
Walking (with and without dogs) clearly is the most common usage, but this can give us the most problems, first you must make a distinction between walking along defined routes/paths both formal or informal in order to travel between points 'A' and 'B'. If you walk your dog across the land, and make no attempt to go off the defined route, even if you let the dog off and it runs all over the place, that arguably is not the usage of a village green. But if you take your dog and walk over the land not in a regular manner, even keeping your dog on a lead is usage of the village green, in other words its about the usage of the green and not the usage of a path even if that path is not registered or in any other way seen as a footpath. But of course if X number of people use the path just as a through route, and Y number of walkers use the land, then you discount X users, but count Y users. Where X users are sometimes Y users, then that is fine on the occasions they use the land they are counted as users, and on the occasions they only use the path they are discounted.
Lord Hoffman in the Trap Grounds case made the point that you do not need to put a foot on every part of the land, he uses the analogy of the formal park with its gardens, those areas where there are gardens set out with plants are not accessed, but people still deprive pleasure from them, through looking at them and te wildlife they attract, he says that only 25% might be accessible and that is fine. In the trap Grounds case much of the land was covered by brambles and bogs, as well as water and therefore could not be assessed. But this it self attracted inhabitants to the land as it enabled them to pick fruit (blackberries), enjoy the wildlife and other similar activities.
The activity does not have to be sports and pastimes, it can be sports or pastimes. whilst in the right circumstances it might only be a single use, it is clearly more advantageous to have many uses, but that in most cases is not that difficult just from every day activity. Therefore you should count each use, doing pie and other charts to demonstrate the many uses and the percentage of that use. Most people will use the land for many different uses count each use as a new activity, do not simply take the main use of any individual persons use. A family might walk the dog, fly kites, picnic, play ball games and pick blackberries, this would amount to 5 different uses.
Some activities can lead to complex arguments, I will go through a few that have come up in recent inquiries. fruit Picking has been argued by the objectors is a profit a prendre. This is clearly a false argument because such activities are expressly excluded by legislation. Profit a prendre is where a person gains an express right to take from the land, this might be wood for fuel, fruit, peat and so on, this becomes a charge on the land and therefore the objectors argue such activity is not 'as of right' but is 'by right'. The gathering of fruit, nuts and other wild produce which might rightly fall within the term 'profit a prendre' is specifically excluded from being registered with the Land Registry under the terms of the Land Registration Act 2002 Section 33(d) where that right or activity occurs on land that falls within the remit of the Part 1 of the Commons Act 2006. It is submitted that this is an ancient right that should more rightly be registered under the terms of the 2006 Act than that of the normal procedure for registering such rights under the 2002 Act.
"Land Registration Act 2002 Section 33(d) - (as amended by the 2006 Act)
No notice may be entered in the register in respect of any of the following-
(d) an interest which is capable of being registered under the Commons Registration Act 1965"
It is clear from the provisions of the 2002 Act that the proper and appropriate place for the registering of any rights relating to profit a prendre is within the register of greens under the 2006 Act. There is always the question of whether the taking of certain items from land not belonging to another person is theft, this may very well be the case with cultivated fruit and produce such as apples from an orchard, as well as soil products such as peat. But this should not be the case with what can generally be termed wild, or uncultivated produce such as blackberries, nuts and fruit from trees left uncultivated, even if at some stage they had been cultivated.
Turning to the question of deferment which is basically where users give way to a superior user, that is the owner or lessee, or someone else rented or hiring the land from the owner. Whilst low level activities by the owner do not trigger this potential block to registration, intensive use might, but even where it does then other parts of the land might still be capable of registration if they are not affected by the use of the owner of the green. There are two easy examples of this that of the farmer cutting hay two or 3 times a year, and that of the golf course where people constantly give way to members of the golf club when they hit their balls. The first example is clearly low level activity, the latter is deferment and therefore not in keeping with the term 'as of right'.
Therefore you must always be sure of what usage of the land is by the inhabitants as of right, and does not have some back door grant of consent, or, providing you check all bases then your road should not be too daunting.
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