24 October 2018 | Comment | Article by Robert Phillips

Town and Village Greens - Statutory Incompatibility

Land in Wales will be registered as a Town and Village Green (“TVG”) if upon application to a Commons Registration Authority it can be shown that a significant number of the inhabitants of the locality (or a neighbourhood within the locality) have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.

The lawful sports and pastimes which lead to a successful registration may not be those that the public immediately associate with the phrase, Village Green. Pastimes are not restricted to cricket, village events or even maypole dancing! Often applications rely on dog walking, picnicking and sledging. Car parks, golf courses, school playgrounds, a quarry and an area of scrubland have all been registered as Village Greens.

Applications for registration can take many months to be processed. They often involve time consuming and costly Public Inquiry hearings where evidence of usage is closely scrutinised by an inspector. If the application is successful then it will be unlawful to carry out development on the land as development will interfere with the ability to use it as a Village Green. TVG applications have therefore become one of the weapons in the armoury of those who would delay or indeed prevent development altogether. Applications are hard fought by landowners and developers who will lose out substantially if land is classified as a Village Green.

One method for opposing applications has been to argue the so called “Statutory Incompatibility” defence. If it can be shown that the existing use of the land by the landowner is incompatible with designation as a Town and Village Green then any application for TVG registration must be rejected.

The Court of Appeal has recently considered whether use of land as a commercial port was incompatible with TVG status.  In the case of TW Logistics Limited v Essex CC and another, land in Essex was used as a commercial port. The port was private and therefore the owner did not have any statutory obligations which it was required to fulfil. The registration had first been made in 2007 when it was demonstrated to the satisfaction of the relevant Commons Registration Authority that the land has been used for walking, dog walking and informal games over the quay and an area of land which was used for turning HGVs and forklifts. A number of years later the landowner decided that it wished to challenge the registration. The court found that the walking, dog/walking and informal games which were carried on on the land were done in co-existence with the port activities. Essentially the members of the public who used the land simply avoided the HGVs and forklifts when they were using the land and generally acted in a manner which allowed the port function to be continued despite their usage.

The court found that on the facts of this particular case the usage by a significant number of the inhabitants of the locality continued in co-existence with the use of the land as a port. Accordingly this was not a case of incompatibility. All of the parties involved used the land in a way which recognised the rights of the other so that the TVG status was able to co-exist with the use of the land as a port.

Whilst looking at the use of the land by inhabitants and whether it was or would be incompatible with the use which the owner has made, the court specifically found that once land is registered as a TVG, the use does not need to be restricted to the precise activities on which the registration was based but the inhabitants using it have do to do so in accordance with the principle of “give and take”, i.e so as not to prevent the owner being able to continue using it for the purposes he has used it for. However it was the case that the usage of the landowner was restricted to such use that would not contravene the rights of the public using the TVG. This meant that the landowner could not enlarge their operations on the land or develop it now that it was a TVG. It can be seen how powerful a tool TVG applications remain for those who would oppose applications.

For more information on Town and Village Greens, get in touch with the Property Litigation team on 029 2267 5560, or watch our webinar where we address the complexities around Town and Village Greens.

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