The current legislation relating to the registration of town or village greens (the Commons Act 2006) has given rise to a number of decisions by the courts which have been bad news for developers and landowners and encouraged the registering lobby. A couple of recent cases which have resulted in victory for the landowner are some good news for landowners.
The recent cases
- In the Taylor v Betterment Properties (Weymouth) Limited case a landowner was successful in obtaining rectification of the Commons Register to remove its land which had been registered as a town or village green. The rectification was ordered, notwithstanding some delay on the part of the landowner in bringing the rectification claim, on the basis that the insufficient weight had been given when the land was originally registered to signs that had been erected on the land.
- In the Newhaven Port and Properties Limited v Sussex County Council case the court, whilst confirming that a beach could fall within the definition of a town or village green, declined to register the beach on the basis that it was required for a statutory function and use incompatible with that function could not have said to have been acquired by users of the beach.
- In contrast to the Taylor case however and as a warning to landowners, the court refused to order rectification of the Commons Register in the recent Adamson v Paddico case, notwithstanding that the facts supported rectification, because of a 12 year delay in applying for rectification by the landowner.
For a summary of the facts of these cases please clink the following link.
What does this mean for landowners?
The Taylor and Newhaven cases are a welcome concession to landowners and demonstrate that it is possible in the right circumstances to challenge the registration of land as a town or village green, even where that registration took effect many years before. However, undue delay as seen in the Adamson case can undermine a landowner's case.
The Taylor case is perhaps the most helpful to landowners as it makes clear the position on signage which is erected on land with a view to preventing commons rights from being acquired. It is clear from that case that where fences are erected but then broken down the fact that fences had been erected is the key.
The priority for landowners should still be to prevent any access to land by the public but where that is not a practical option, clear signs in sufficient numbers and placed in appropriate locations should continue to be erected by landowners, and notwithstanding the recent case, should be maintained wherever that is possible. The wording of such signs and their location will remain important and is something that landowners should seek advice upon.
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