Cause for optimism

A recent case has given hope to registered providers and other developers who have seen the registration of village greens frustrate a development, writes Karl Jackson.

When is a village green not a village green? The High Court may well answer "after nine years" following its decision to cancel the registration of a town or village green nine years after its original registration. The conclusions the Court drew may give optimism to those Registered Providers and developers who have seen the registration of village greens used as a means to prevent residential development.

In Betterment Properties (Weymouth) Ltd v Dorset County Council and another (2010) the Court's decision was based on the disputed evidence in the case relating to the use of the site by force through the damage to fences enclosing the site. However it is the Court's conclusions and the reasoning of those conclusions that are of most interest.

Initially the Court of Appeal was asked to rule on preliminary issues. The High Court has the power under section 14 of the Commons Registration Act 1965 to order the rectification of the register if it considers that no amendment should have been made to the register and if it deems it just to rectify the register. The Court of Appeal determined that the High Court's powers under section 14 were not restricted to an appeal. The Court of Appeal ruled that the High Court was allowed a full review of the legal principles and the underlying evidence in proceedings made under section 14 of the Act.

The High Court found on a full examination of the facts of the case that the registration should not have been made but was it just to rectify the register now? The High Court decided that the owner of the site could show a substantial difference in the monetary value of the land being a registered village green and the value of the land without the registration. The Court ruled that if rectification were allowed then the owner would be free of burdens that should not have been placed on them in the first place and the inhabitants would be denied future rights that they should not have enjoyed previously. On this reasoning the Court ordered that it was just to rectify the register.

Once the Court finds that the original registration of a village green should not have been made it is difficult to see how, using the reasoning above, they could ever decide not to rectify a registration and cancel the registration of a village green. It is inevitable that the value of land registered as a village green would be substantially lower than land that isn't.

Even more interesting in the Betterment case is the fact that the party bringing the case bought the land after its registration, not only in the knowledge that it was registered, but including in the purchase price a hope value to take into account the possibility that the registration could be cancelled. A claim can therefore be successful even if a significant amount of time has passed and if the party bringing the action bought the land with the knowledge that the land was registered and with the intention of disputing the registration.

Perhaps the decisions made in this case will make Registered Providers and developers view registered village greens more as potential purchase opportunities than barriers to development.

After all a village green may not, in the High Court's view, be a village green at all...

Karl Jackson is Head of Real Estate at Mace & Jones.

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