Town and Village Greens – Where Now and What Next?

The registration of town and village greens continues to be hugely controversial – only last week the National Housing Federation launched a vitriolic attack on “NIMBYs” that use the laws in this area to block affordable housing developments in rural communities. Julian Steed takes a look at some of the practical issues for local authorities.

As revealed in Local Government Lawyer on 23 December 2009, the Department for the Environment, Food and Rural Affairs (DEFRA) is planning to consult on a review of the current town and village green (“TVG”) registration system this Spring. The consultation comes hard on the heels of a report commissioned by DEFRA from the Countryside and Community Research Institute and Asken, a copy of which can be found on DEFRA’s website.

The scope of the consultation is not clear yet but it seems likely, given the key findings of the report, that a wholesale review of the law of town and village greens is not anticipated. Rather, it would seem that DEFRA wishes to take soundings on the mechanics of the registration process and on the interplay, or perceived lack of it, between the TVG registration scheme and the planning process.

Local government lawyers will typically be involved in TVG applications in two ways. They may find themselves acting for client estates departments as objectors to an application and they may be required to provide advice on the merits of an application and its disposal to the authority in its capacity as registration authority. Sometimes the same authority will be both landowner/objector and registration authority. In such cases lawyers may have to advise on how both functions can be carried on independently and without conflicts of interest. Where the planning history of an application site is raised in evidence, the local planning authority may be required to produce evidence of, for example, objections received at various stages of the planning process, whether successful or not, and so the lawyers’ presentational skills may also be called into play.

A full treatment of all or any of these issues, or of the substantive law, is beyond the scope of this article, but the imminent consultation marks a useful point to consider some practical issues left unresolved by the Commons Act 2006, the Commons Registration Act 1965 and the associated case law.

Even where the criteria for a new village green have been met, it is the act of registration by the registration authority that effectively confers TVG status and the associated protection on the application land (so held the House of Lords in Oxfordshire County Council-v-Oxford City Council & O’rs [2006] LGR 713).

Before 2007 a practice had grown up of landowners applying to the High Court for declarations that potential application land was not capable of being registered as a TVG. Tactically this was a useful weapon since costs could be awarded against unsuccessful proponents of the land’s status as a green.

The case of McLaren-v-Kubiak [2007] EWHC 1065 (Ch) put paid to that practice. Here the High Court decided that since Parliament had given the job of determining registration applications to the local authority, the courts did not have jurisdiction to decide that land was not capable of registration.

Logically this ought to mean that all those cases likely to be harder fought are now having to be decided by the registration authorities rather than by the courts, which ought to lead to a consequential increase in the burden of determining applications. Whilst a registration authority operating under the old regulations can decide to reject an application that is not “duly made” (the Commons Registration (New Land) Regulations 1969, reg 5(7)) the limited scope of this power and the risk of a challenge of such a decision by way of judicial review both beg the question of whether it would be appropriate to have some formal system of assessing and filtering applications at an early stage. The position is only slightly better under the new regulations which apply to the pilot areas (The Commons Registration (England) Regulations 2008, reg 20, and particularly 20(5)).

It is one of the principles of English law that there should be an end to litigation (eg Re May (1885) 28 ChD 516). It might also be said that the one thing landowners and developers want above all is certainty. To this end the courts have developed the related principles of res judicata, issue estoppel and cause of action estoppel. In short, where a legal question has been determined by a court of competent jurisdiction, the issues before the court and decided by the court should not be capable of being re-litigated.

How does this fit into the TVG registration procedure? Most actively contested applications are determined by the process of holding a non-statutory public inquiry before an Inspector who is normally a lawyer with experience of and expertise in the relevant law. The Inspector will listen to the evidence and hear submissions on the law. Having done so s/he will make recommendations to the registration authority which will almost inevitably adopt them, either under delegated powers or by reference to the relevant Committee or full Council.

There is no determination of the land’s status by a court and because of the decision in McLaren there cannot be. The only way the courts will consider the status of the application land is indirectly, on the basis of a judicial review challenge by the applicant of a decision not to register the land. On the face of it there is nothing to stop an unsuccessful applicant from making a further application or applications rather than pursuing judicial review.

If the new application raises new points of law or relies on new evidence is the registration authority entitled to reject the application on the basis of one or other of the estoppels? If not, then ought it to be, given the very limited ability to reject an application as being other than “duly made”?

What, too of the serial applicant who makes or threatens to make successive applications in respect of potential development land for the purpose of frustrating a sale and/or development but has no real intention of pursuing the applications?

One view is certainly that once the registration authority has decided (properly) to treat the application as duly made, it also has the power to determine the application, even if the applicant purports to withdraw it, but how must this be done? Should the registration authority be obliged to go through the whole non-statutory public inquiry process with only the objectors taking an active role in the proceedings? How and where in such a case is an appropriate balance to be struck between the sometimes conflicting principles of justice, fairness and finality?

Some of these issues are addressed in the pilot of the new regulations governing the procedure, but not the law, for applications made under the 2006 Act (the Commons Registration (England) Regulations 2008.) For example, these regulations provide for the ability to have an application determined by the Planning Inspectorate where the registration authority has an interest in the outcome.

The pilot was intended to be reviewed in 2009 with a view to nationwide rollout in three tranches commencing in October 2010. The present position on the rollout according to DEFRA is that any further consideration of it will now be delayed until after September this year. The responses of the pilot authorities to the forthcoming consultation will no doubt be of particular interest, but there are other issues to consider above and beyond those addressed by the 2008 Regulations, some of which are identified above.

Julian Steed is an associate in the real estate disputes team at Mills & Reeve. He can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it..