Developers buying land for later development may risk having it turned into a village green. But a recent case points up strategies for protecting that land against future claims.
The management of long- to medium-term landholdings, purchased in the hope of obtaining consent to develop at some point in the future, has always presented a challenge to developers. A common strategy has been to grant agricultural licences, limiting the use of the land to grazing or hay-making. After all, if the land is being farmed, it won't turn into a village green. Or will it? In consequence of the recent challenge by Laing Homes to Buckinghamshire council's decision to register 38 acres of its land at Widmer End as town or village green, it is now more likely that the answer will be no.

An application to register land as a green can be made by anyone. Broadly speaking, the application will succeed if it can be shown that a significant number of locals have used the land for recreational purposes for at least 20 years. Land that is a town or village green cannot be developed.

Until 1999, relatively few applications succeeded. Then came the decision of the House of Lords in R vs Oxfordshire County Council & Anor, Ex Parte Sunningwell Parish Council (1999), which relaxed the statutory test for determining whether land should be registered as town or village green. In consequence registration authorities noted a sharp increase in applications, many of which reflected attempts by locals determined to put a stop to development plans.

However, Sunningwell left open many issues, leaving those involved in village green claims to grapple with uncertainty in an area which had previously been of little, if any, concern to most developers. The recent decision of Mr Justice Sullivan in Laing provides long-awaited guidance on key points of village green law.

The application was made by a resident on behalf of a number of local action groups, claiming that for more than 20 years they had used part of Laing's long-term landbank at Widmer Farm for recreation without being challenged. Laing objected to the application. An inspector was appointed by the registration authority to investigate, and an inquiry was held at which both the applicant and Laing called witness evidence. For Laing, it was said that a hay crop had been taken from the application land by the licensee farmer for over half of that 20-year period. The farmer explained to the inspector that the locals (who, he acknowledged, came onto the land from time to time while he was there and in all likelihood were on the land when he was not there) respected his activities and did not interfere. The applicant's witnesses also admitted that when the farmer was there, they did not have any right to stop him. Despite this, the inspector concluded that the taking of a hay crop for more than half of the 20-year period did not prevent the application from succeeding.

Is use of land by the owner enough to defeat a village green claim?

Laing challenged the decision. The difficulty was that village green law did not address what happened if both the owner (or his tenant or licensee) and locals had used the land. The registration authority defended the claim, but the judge rejected its suggestion that he should consider whether the farmer's activities had caused any substantial interference with the locals' recreation on the land (which arguably, on a year-to-year basis, it had not). He decided that the correct approach was whether the recreational use by locals interfered with the activities of the owner in such a way that a reasonable landowner would understand that the locals thought they were exercising a public right. If the locals gave way to the farmer, why should Laing have been worried that those same locals would then claim village green rights?

The judge explained that landowners might choose to use their land for other purposes and for a relatively small number of days or for a short period in each year. As long as the locals accepted that the owner's use took precedence over their use of the land, the same principle would apply, with the qualification that every case should be looked at on its facts (in Sunningwell a licensee grazed a small number of horses on the land but there was no clash of use and the application succeeded).

The court was also told that during the local plan process, the applicant had objected to the allocation of the land for housing, claiming that it should be "returned to agricultural use". This public statement supported the conclusion that any reasonable owner would have thought the locals were accepting Laing's right to use its land for agriculture rather than suggesting that they had a superior right to use that same land for recreation.