The right to protect town and village greens for the benefit of local people has, over the years, been one of the most active and fast-moving areas in property law. The ability to register a village green and, therefore, protect that land from development has seen the pendulum swing between the rights of those who want to protect land and developers who seek to develop land. The central government policy to encourage much needed housebuilding led to the Growth and Infrastructure Act 2013 which restricted the ability of interested parties to register (and therefore protect) a village green.
A recent case in the High Court (R (Allaway) v Oxfordshire County Council) has tested the resolve of the courts in this area and is interesting for developers and landowners alike. The court considered whether to grant judicial review on the basis of an argument that a town or village green registration decision by a local authority had been incorrectly made. The claimant argued that the use of public rights of way should have been discounted entirely from the recreational use attributable to use as a village green. It had also been argued that the inspector had failed to show that a significant number of inhabitants used the land as there was not a geographical spread of users of the village green within the locality.
The court held that the use of pathways, where recreational rather than for the purposes of asserting a right of way, could count as use as a lawful sport or pastime to show use of the land as a town or village green. Provided that a significant number of inhabitants use the land as a town or village green, it is not relevant that such users come from a geographical spread of the chosen locality or neighbourhood.
We await further developments in this interesting area of struggle between communities and developers!