Land can be registered as a town or village green (‘TVG’) under the Commons Act 2006 if it has been dedicated by an Act of Parliament for the recreation of the inhabitants of a locality; if the inhabitants of a locality have a customary right to indulge in local sports and pastimes; or if it is land on which, for not less than 20 years, a ‘significant number of the inhabitants of any locality, or any neighbourhood within a locality’ have indulged in lawful sports and pastimes.[1] The TVG legislation has been generously interpreted by the courts over the last 20 years or so, and the contemporary legal concept of a village ‘green’ is some way from the idealistic conception of the traditional village green with maypole and village pub in the background. The courts have ruled in the recent past that there is no requirement for the land to conform to a specific physical description: it does not have to represent the traditional village ‘green’ and may include, for instance, part of a beach or even land that has been ‘created’ by the deposit or accretion of soil.[2]

Whatever its nature or locale, once registered as a TVG the land is protected as a community resource – but the legislation makes no provision for the vesting of individual property rights over it in members of the community, or for the registration of specific recreational rights in them.[3] Land that is registered as a TVG can be used for all ‘lawful sports and pastimes’, not just those that gave rise to the claim for registration.[4]  This is another concept that has been generously interpreted by the courts. In R v Oxfordshire County Council ex parte Sunningwell Parish Council[5] it was held that ‘lawful sports and pastimes’ can include a wide range of recreational activities including dog walking, playing with children, blackberry picking and other forms of informal recreation. It is not necessary for the activity to be communal, and neither must it involve what is usually considered a ‘sport’.

The somewhat generous interpretation of the legislation on TVGs seen in earlier cases came to an end shortly before Christmas 2019, when the Supreme Court gave its ruling in two cases that will have a profound impact on the future ability of communities to register land as a TVG.[6] The first was an appeal by Lancashire county council (as local education authority) against the registration of 13 hectares of land in Lancaster as a TVG (the “Moorside Fields” case). The second was an appeal by the NHS against the registration of 2.9 hectares as a TVG in Leatherhead (the “Leach Grove Wood” case). In the Moorside Fields case the planning inspector had recommended registration following a public inquiry; in the Leach Grove Woods case the inspector did not recommend registration, but Surrey County Council had decided to register the land as a TVG in any event.

The Supreme Court ruled, by a 3:2 majority, that both appeals should be allowed and that the land could not in either case be registered as a TVG. The legal basis for the majority decision was that where land is held by a public body for statutory purposes which are inconsistent with the recreational rights granted to members of the community by registration of the land as a TVG then it cannot be registered. The court had to consider the principle of statutory incompatibility – whether the recognition of community recreational rights over a TVG (if registered) would render it impossible for a public body to carry out the other statutory purposes for which it held the land. In another recent case decided in 2015  – R (Newhaven Port and Properties Ltd v East Sussex County Council[7] - the Supreme Court had applied the statutory incompatibility principle to rule against the registration as a TVG of a specific area of land held by the Newhaven port authority for the purposes of the port operation. The judgement in the Moorside fields and Leach Grove Woods cases greatly extends this principle to deny registration as a TVG to land that is held by public bodies which have general powers granted by statute to hold any land for educational or health purposes.

In the Lancaster case the local education authority had argued that designating the fields adjacent to the Moorside primary school as a TVG would be incompatible with its statutory duties under the Education Acts of 1944, 1996 and 2002 to ensure that there they made available ‘sufficient schools’ in their area and supplied suitable outside space therewith for outside play and physical recreation.[8] The planning inspector had considered the council’s detailed plans for the extension of Moorside primary school on different land, and concluded that the only future intended purpose for the land in question was  to provide outside activities and sports for the school – uses which were not necessarily incompatible with the use of the land by inhabitants of the locality for lawful sports and pastimes if the land were also a TVG.[9] Giving the leading judgment in the Supreme Court, however, Lord Carnwath held that the issue of incompatibility must be decided by reference to the statutory purposes for which the land is held by a public body – not be reference to how the land is used at any given time.[10] He also stressed that the Commons Act 2006 does not enable a public authority to buy out rights over a TVG on land it owns, where this is necessary to pursue its other statutory purposes, other than by supplying alternative replacement land as a TVG – and that it would therefore be ‘surprising’ if Parliament when passing the 2006 Act had intended to allow the 2006 Act to be used to “frustrate” important public interests expressed in statutory powers.[11]

This decision will greatly restrict the ability of local communities to register land that is owned by public bodies as a TVG – and to secure its long-term protection as community green space. In an age of austerity, local authorities and other public bodies are under enormous pressure to raise funds for core services. If land that has been used by communities for local sports and pastimes, often for long periods in excess of 20 years, cannot be registered as TVG and given the legal protection that this entails, then there is often little to stop it being sold for development. The importance of public access to green space is an important public policy that the Supreme Court decision will do nothing to promote. It also underlines the importance of the bespoke statutory protection given to some of our most important urban commons such as Town Moor in Newcastle, Clifton Downs in Bristol and Mousehold Heath in Norwich – three of the Wastes and Strays project case studies – which are legally protected by private Acts of Parliament. In the absence of this bespoke legal protection, the Moorside fields litigation shows just how vulnerable community green space can be – and will continue to be in the future.

Chris Rodgers, Newcastle University

January 2020