Town and village greens: the registration risk to a site

Town or village green registration is the quietest way to lose a development site. It happens outside the planning system, it is decided by the commons registration authority rather than the local planning authority, and once land is registered the Victorian statutes that protect greens make building on it effectively impossible. A planning permission over registered land is worth nothing.

For a developer buying open land with a footpath worn across it, this is the risk that deserves an hour of diligence before exchange. Section 15 of the Commons Act 2006 sets the test, and the Growth and Infrastructure Act 2013 gave landowners two practical defences.

What registration does to a development site

Registration does not transfer ownership. It attaches a set of protections to the land that make development unlawful in a way planning control cannot cure.

The Inclosure Act 1857 and the Commons Act 1876 create offences relating to injuring a green, encroaching on it or interfering with its use for recreation. The House of Lords confirmed in the Oxfordshire litigation that those provisions apply to modern registrations, and the practical consequence is that a registered green cannot be built on, fenced off or materially altered.

There is no appeal to a planning inspector, because it is not a planning decision. The only route of challenge is judicial review of the registration authority's decision, on limited grounds, within a short window.

That asymmetry is why a green application is often deployed by residents at the point a site is promoted through a local plan. It is slower than an objection and far more final.

The statutory test in section 15

Section 15 requires an applicant to show that a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for at least 20 years.

Each limb is contested in practice.

That first phrase does not mean a majority. It means enough people to signal to a reasonable landowner that a general right is being asserted. Twenty households using a field regularly can be enough.

Locality has to be a recognisable administrative or historic unit, such as a parish or an electoral ward. A neighbourhood within a locality is looser but must still be cohesive rather than drawn to fit the evidence.

Lawful sports and pastimes covers dog walking, children playing, kite flying and informal games. Walking a single defined route is a public right of way claim rather than a green claim, and the two are often pleaded together.

As of right is the phrase that decides most cases. Use must be without force, without secrecy and without permission. Where the landowner has granted permission, by signage or by licence, the use is by permission and the clock never runs. Where the land is held by a public body under a statutory power that already permits public recreation, the Supreme Court held in Barkas that use is by right rather than as of right, so no green arises. Where registration would be incompatible with the statutory purpose for which the land is held, Newhaven Port and Properties provides a further answer.

Under section 15(2) the use must be continuing when the application is made. Where use has ceased, section 15(3) allows an application within one year of it ending, a period shortened by the Growth and Infrastructure Act 2013.

Trigger events that switch off the right to apply

Section 15C and Schedule 1A of the Commons Act 2006, inserted by the 2013 Act, remove the right to apply for registration while a trigger event is in force.

The events are tied to the planning process. Publicising an application for planning permission over the land is a trigger. So is the grant of permission, the identification of the land for potential development in a published draft development plan document, and a neighbourhood plan proposal reaching the relevant stage.

Each trigger has a matching terminating event. Withdrawal of the application, refusal with appeals exhausted, or the plan document being withdrawn will restore the right to apply.

This changes the sequencing of any land promotion. Submitting a planning application, even one you expect to be refused, closes the green route for as long as it is live. Letting a permission lapse without implementing it can reopen it. Where a site has a long promotion timetable and a history of public use, keeping a trigger event in place continuously is a defensive strategy in its own right.

Depositing a landowner statement

The second defence introduced in 2013 is the landowner statement under section 15A. Depositing a statement and plan with the commons registration authority brings to an end any period during which use has been as of right.

The effect is not to make existing use unlawful. It starts the one year clock under section 15(3), so anyone with a completed 20 year period must apply within a year or lose the opportunity. After that the count starts again from zero.

Two practical points. Deposits are made to the registration authority for the area, which is the county or unitary council rather than the district, and the authority maintains a public register of them. And the statement should normally be paired with a deposit and statutory declaration under section 31(6) of the Highways Act 1980, which performs the equivalent function for public rights of way. Doing one without the other leaves half the exposure open.

Statements need renewing. Check the current deposit period and fee with the registration authority, because both are set locally and change.

How registration applications are decided

The registration authority decides, and on any contested application it will normally appoint an independent inspector to hold a non-statutory public inquiry.

Evidence comes in the form of user evidence questionnaires from residents, witness statements, historic aerial photography, Ordnance Survey editions and estate records. The landowner's evidence usually goes to permission, interruption of use, the extent of the land actually used and the definition of the locality.

Inquiries run like a planning inquiry with cross-examination and can last several days. Costs are not routinely awarded. Budget for a specialist barrister and a surveyor familiar with historic map evidence, and start collecting your own evidence early, because photographs of fencing and signage are far more persuasive than recollection.

An Open Space Assessment prepared for the planning application will not answer a green claim, though it is useful context on how the land functions and what alternative provision exists nearby.

Reading a site before you buy it

Diligence on open land should cover five things:

1. The register of town and village greens and common land held by the commons registration authority.
2. The register of deposited section 15A statements and section 31(6) declarations for the same land.
3. Whether any trigger event under Schedule 1A is currently in force.
4. Physical evidence on site: worn paths, gaps in hedges, informal parking, goalposts, signage, gate condition.
5. The planning history, including any refused application that mentions informal recreational use.

A seller who has never fenced the land, never posted a notice and never granted a licence has given you a problem, whatever the title says. Price it or condition the purchase on a deposited statement being made and the year running out.

Living with land that is already registered

Registered greens are not always fatal to a wider scheme. Where the green covers part of a larger holding, the development can sometimes be designed around it and the green treated as delivered open space in the Planning Statement, which turns a constraint into a policy benefit.

Deregistration and exchange under section 16 of the Commons Act 2006 is possible, and it requires the Secretary of State's consent and usually the offer of replacement land of at least equal benefit. It is slow and it is not a route to rely on in a land appraisal.

Early, honest engagement with the community that uses the land tends to work better than either. A Statement of Community Involvement recording that engagement is worth having, though it is no substitute for a deposited statement.

You can browse all 66 PlanScope report types to see which supporting documents a site with informal public use is likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.