Town or village green registration as a constraint

Village green registration of land is close to a development death sentence, and that is why it is used as a tactic rather than only as a record of local history. Once land is registered as a town or village green under the Commons Act 2006, Victorian statutes make it a criminal offence to build on it or enclose it, and there is no planning route round that. A planning permission over a registered green is worth nothing.

The good news for anyone promoting a site is that the Growth and Infrastructure Act 2013 built in a shield. Once a trigger event has occurred, usually the publicising of a planning application, the right to apply for registration is suspended. Getting the sequence right is the whole game.

What registration actually prevents

Registration does not create a planning designation. It creates a different legal status for the land, enforced through criminal law rather than through the planning system.

Section 12 of the Inclosure Act 1857 makes it an offence to damage a green or to interrupt its use and enjoyment as a place of exercise and recreation. Section 29 of the Commons Act 1876 makes encroachment on or enclosure of a green, and the erection of buildings on it other than for the purposes of the green, unlawful. The courts confirmed in the Oxfordshire litigation that those provisions apply to greens registered under the modern legislation.

The practical effect is that you cannot fence it, build on it, dig it up or park on it. Nor can you extinguish the status easily: deregistration under the 2006 Act is available only in narrow circumstances, usually involving exchange land of at least equivalent benefit, and it is a long process with an uncertain outcome.

So this is not a constraint you mitigate. It is one you avoid.

The statutory test

Section 15 of the Commons Act 2006 allows any person to apply to the commons registration authority, which is the county council or unitary authority, to register land as a town or village green where 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 element of that does work:

• That phrase does not require a majority. It means enough people to show use by the local community rather than by a handful of individuals.
• Locality must be an administratively recognised area such as a parish or a ward. Neighbourhood within a locality is looser but must be a cohesive area capable of description.
• Lawful sports and pastimes covers informal recreation. Dog walking, children playing, picnicking, kite flying and blackberrying all count. Walking a defined path does not, because that is use of a right of way rather than of the land as a whole.
• As of right means without force, without secrecy and without permission. This is the element that most often decides the case.
• Twenty years means a continuous period, and the use must either be continuing when the application is made or have ceased within the year before it. That grace period was reduced from two years to one by the Growth and Infrastructure Act 2013.

Trigger events that block an application

The 2013 Act inserted a schedule of trigger and terminating events, and it is the most useful provision in the whole regime for a landowner.

Once a trigger event has occurred in relation to the land, the right to apply for registration is excluded until a corresponding terminating event occurs. The trigger events include the first publicising of an application for planning permission that would be determined under the Act, the publication for consultation of a draft development plan document identifying the land for potential development, the publication of a neighbourhood development plan proposal that does the same, and an application for permission in principle.

The terminating events are the mirror image. Withdrawal or final disposal of the application, adoption or withdrawal of the plan, and so on. When a terminating event occurs the shield drops and an application can be made again, which is why a refused application followed by a long gap is dangerous.

Three consequences for a promoter:

1. Submitting the planning application early, even on an outline basis, is a defensive act as well as a commercial one.
2. A site allocated in a draft plan published for consultation is protected while that plan proceeds, which is a reason to engage with plan-making rather than relying on an application alone.
3. Do not let a shield lapse without another in place. If an application is about to be withdrawn, think about what replaces it.

Checking the register and pending applications

Due diligence here costs little and is frequently skipped.

Ask the commons registration authority for a search of the register of town and village greens, and separately for a list of pending section 15 applications affecting the land or any land within it. And pending applications matter as much as registrations, because a live application will stop a sale and will usually stop a lender.

A local land charges search will reveal a registered green. It will not always reveal a pending application, so ask the authority directly and in writing.

Then look at the physical evidence. Worn paths across the middle of a field, a gap in a hedge opposite a housing estate, a rope swing in a tree, dog waste bins installed by the parish council, goalposts. Those are the signs that a registration case is available to someone, and they are visible on a site visit.

Local Green Space is a different thing and often confused with a green. It is a planning policy designation made through a local or neighbourhood plan, giving protection similar to Green Belt, and it is dealt with in national policy on open space and local green space. Listing as an asset of community value under the Localism Act 2011 is different again and gives a community a right to bid rather than a right to stop development.

The evidence an applicant has to produce

An applicant assembling a case gathers witness evidence, and that is the strength and the weakness of these claims.

Expect 20 to 60 statements from residents, each describing what they did on the land, where, how often and over what years, often with annotated plans. Expect historic aerial photography, old Ordnance Survey plans, photographs of children's parties and village fetes, and parish council minutes. Expect a locality or neighbourhood defined by reference to a parish boundary or an estate.

Where applications fail, it is usually on one of three things. The 20 year period is interrupted by a fence, a crop or a period when the land was ploughed. The use was permissive, because the owner put up a notice or granted a licence. Or the witnesses describe walking a track rather than using the land as a whole.

The commons registration authority normally appoints an independent inspector to hold a non-statutory public inquiry on contested applications, with cross-examination of witnesses. That process takes many months and costs both sides real money.

Defences a landowner can run

Four lines of defence, in rough order of strength.

Trigger events, as above, which are a complete answer while they last.

Statutory incompatibility, established by the Supreme Court in the Lancashire and NHS Property Services appeals. Where land is held by a public body for statutory purposes that are incompatible with registration as a green, it cannot be registered. That protects school sites, hospital land and land held for operational purposes, though it is a narrower defence than landowners often hope.

Use by right rather than as of right, established in the Barkas case. Where the public used the land under a statutory power, for example a recreation ground provided by a council under its housing or open space powers, the use was by right and cannot found a registration claim.

Interrupting the use. A landowner can deposit a statement under section 15A of the 2006 Act with the commons registration authority, which brings to an end any period of recreational use as of right and starts the one year clock within which an application must be made. Combined with lawful fencing and clear signage, it is the standard preventive measure, and it is worth doing on any land bank held for the long term.

Permission is the other route. Granting express permission for recreational use, by notice or by licence, defeats the as of right element going forward. It does not undo 20 years that have already accrued.

Effect on value and what to do now

A registered green has effectively no development value, and a pending application suppresses value until it is resolved. Option agreements and promotion agreements should deal with it expressly, with a right to terminate or an extension of the option period where an application is made.

If you are buying or promoting land with any history of informal public use, do these four things:

• Search the register and ask about pending applications, in writing.
• Walk the site and photograph the physical evidence of use, dated.
• Deposit a section 15A statement and review the signage and boundary treatment.
• Get a planning application or a plan allocation into the system to create a trigger event, and keep one in place.

Where community use is real and valued, a scheme that keeps the used part as public open space, properly laid out and transferred or managed under an agreement, is often a better answer than a fight. An open space assessment quantifying provision and deficiency supports that case, and a statement of community involvement recording genuine engagement makes it credible. Set the land use case out in the planning statement rather than leaving it to the design drawings.

This is general guidance, not legal advice; registration disputes are fact heavy and the consequences are severe, so take advice from a solicitor experienced in commons registration before acting.

You can browse all 66 report types to see which documents a site with open space constraints usually needs. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.