Amongst the terms most likely to strike fear into the heart of a developer, are the phrases "Common Land" and "Town and Village Greens". But what do these terms mean and, more importantly, can anything be done if their presence is revealed?
Common Land
Quite simply, "common land" means land owned by one person/persons over which another person/persons is/are entitled to exercise rights of common, such as grazing animals.
To a developer, the aspects of common land which cause most concern are that members of the public will likely have rights of access for air and recreation over certain land, as well as rights on foot to "access land" under the Countryside and Rights of Way Act 2000 and accordingly there will inevitably be restrictions on the owner's ability to develop and use their land as desired.
Town and Village Greens ("TVG")
Traditionally, town and village greens may or may not have been subject to rights of common. The essential characteristic of a town or village green is that it is an area of open space which, by historic custom, has been used by the inhabitants of the town, village or parish, for the purposes of recreation.
"Common Land" and "TVG" rights are often conflated in practice, but for a developer, it is essential that a "commons registration search" is undertaken in the conveyancing process, to establish whether there are any relevant rights under either regime. But if rights are known/revealed, what is a developer to do?
One solution may be the somewhat little-known procedure by which a landowner can apply to release affected land for development by way of "deregistration and exchange":
The owner of any land that is registered as common land or as a town or village green in England can apply to the Secretary of State (but in practice, to DEFRA) for the land to be released from the registration. However, if the application relates to the release of land with an area of more than 200 square metres, the application must include a proposal to register an alternative site as common land or a town or village green. The alternative site would then be registered in exchange for the release of the original burdened land.
The recent Court of Appeal case of R (Strack) v Laing Homes addressed this procedure and highlighted a number of key points, namely:
- The legal rights of people over a village green do not extend to "the public" at large, but a narrower class of "qualifying inhabitants" in the neighbourhood; but
- In this case, where the Inspector wrongly confused the two, it made no material difference to the decision to allow the deregistration and exchange of other land which could go ahead.
Laing Homes had applied to deregister 33,000 square metres of land at Woodcock Hill Village Green, Borehamwood in exchange for the provision of a new village green on 36,000 square metres of nearby land. A High Court judicial review by objectors failed. Their appeal to the Court of Appeal was also unsuccessful. Though one of the three technicalities claimed by the appellants was upheld, the appeal was dismissed.
Although the Inspector had erred in Law as to beneficiaries of rights over the green (wrongly assuming the general public rather than a more limited "neighbourhood"), that was just one of many considerations for the inspector to factor into his decision. The Court of Appeal would not overrule the Inspector's otherwise reasonable decision.
Developers should be alive to the possibility under Section 16 of the Commons Act 2006 to deregister commons/town and village green land in exchange for the provision of alternative land. It should also be noted that in the (perhaps less likely case) of registered land being 200 square metres or less in size, statute only provides that an application "may" include the offer of land in exchange.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.