Landowners face trouble ahead with the introduction of the Commons Act 2006, especially section 15, which could block a development for at least five years

The UK-wide implementation of the Commons Act 2006 is scheduled for 2013 at the earliest, but development and regeneration projects are already grinding to a halt in anticipation. The real problem is this: where land is registrable as a town or village green, it will remain so for up to five years after people have stopped using it.

Once land has been registered, almost nothing can be done with it. The impact of registration on landowners is severe. Any development that has been carried out will be unlawful and a court could require its removal and the reinstatement of the land.

On paper the law is still covered by a series of dusty statutes and by recent case law, the most significant being the Trap Grounds case, where the House of Lords decided that qualifying use must continue up to the date of an application.

In practice, attention has turned to section 15 of the 2006 Act. A registration authority might refuse to register land under the current law, only to find the application successfully resubmitted as soon as the new act comes into force.

Almost any activity can qualify as a lawful sport or pastime that means land can be registered as a green – for example, dog walking or skateboarding

The Commons Act received royal assent on 19 July. When section 15 will come into force is not yet known, but the government has stated it intends to bring it into force “as soon as possible”. For the rest of the act, pilot schemes could be set up by the end of next year.

An application for registration of land as a green can be made under the act 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 a period of at least 20 years”.

Section 15 provides that there will be three sets of circumstances in which an application for registration can be made:

  • Where use continues to the date of the application for registration.
  • Where use ceases before the date of the application and after the coming into force of section 15 of the Commons Act 2006. In this case an application may still be made up to two years from the date the use ceased.
  • Where use ceases before the date of the application and before the coming into force of Section 15. In this case an application may still be made up to five years from the date the use ceased.
It is important to understand that almost any activity can qualify as a lawful sport or pastime – for example, dog walking, picnicking or skateboarding – and that the land in question can be small, derelict or overgrown and still qualify. Even some rocks in Anglesey, used by locals to moor their boats, have been registered as a green.

The only certain way of releasing registered land to allow development would involve giving away equally advantageous land as a replacement

The act contains a saving provision for development already begun by 23 June 2006, but parliament deliberately ensured there would be no last window of opportunity in which to start development.

Fighting registration of land tends to rely on proving that use of the land was not “as of right” (meaning without permission, or using force or secrecy). A landowner might prevent access to the land or erect notices to grant specific permission. With either approach it is now necessary, because of the 2006 Act, to wait in case an application for registration is made.

An alternative approach to preventing registration could be the use of statutory provisions to show that the land is used by the public under a statutory trust. This approach is promising, but untested.

Several of their lordships made helpful comments in R (Beresford) vs Sunderland CC (2004) and Oxfordshire CC v (1) Oxford CC (2) Catherine Mary Robinson (2006) (that is, the Trap Grounds case) but the points were not specifically argued.

If land is registered as a village green the only certain way of releasing it to allow development would seem to involve the giving of equally advantageous land of at least equal size as replacement. Section 16 tells us that an application to the secretary of state is required, but we will not know the exact mechanism for deregistering the land until regulations are made.