Town and Village Greens in Wales: Past, Present

and Future

Morag Ellis QC and Rob Williams

OVERVIEW

PAST –s.22(1) Commons Registration Act 1965

PRESENT – s.15 Commons Act 2006

– The Commons (Registration of Town or Village Greens) (Interim Arrangements) (Wales) Regs 2007

FUTURE – Part I of Commons Act 2006 (s.16, s.17,s.19 &s.22)

– The Commons Registration (Wales) Regs 20??

PAST – s.22(1) of 1965 Act

Is section 22(1) of the 1965 Act still of relevance?

Test:– - [for a period of] not less than 20 years– - …a significant number of the inhabitants…– - …of any locality, or of any neighbourhood within a

locality…– - …have indulged in lawful sports and pastimes – - …as of right..– -… and continue to do so

PRESENT – s.15 of 2006 Act

Section 15

– s.15(2) replicates 1965 Act test BUT must be read with s.15(7) – permission after 20 years use does not negate ‘as of right’ use

– s.15(3) – if use land as of right ceases on or after 6 September 2007, applicants have a 2 year period of grace in which to make application.

PRESENT – s.15 of 2006 Act

Section 15– s.15(4) – if use of land as of right ceased before 6 September

2007, applicants have a 5 year period of grace in which to make application……BUT

– s.15(5) – s.15(4) will not apply if:(a) planning permission before 23 June 2006;(b) construction works commenced before that date

on land in respect of which planning permission was granted; And

(c) the land has or will become permanently unusable

PRESENT – s.15 of 2006 Act

Section 15

– s.15(6) – any period of statutory closure to be disregarded when determining whether 20 years use as of right

– s.15(8) – Owner of land can register it voluntarily as a green. No need to satisfy criteria in s.15(2) to s.15(4)

FUTURE

Implementation of Commons Act 2006

– ENGLAND - Pilot Schemes & The Commons Registration (England) Regulations 2008

– WALES – WAG hope to commence ‘key sections’ of 2006 Act from 2010.

FUTURE – Registers

Regulations to provide form and content of Registers – likely to be similar to Registers under 1965 Act EXCEPT

Electronic/Digitised Registers by 2011.

FUTURE – s.19 of 2006 Act

s.19(1)&(2) – Authorities may amend or correct mistakes in the Register in prescribed circumstances:

Mistakes made by the Registration Authority Amendment does not affect extent of registered land Duplicate Entries Updating names and addresses Updating to take account of accretion or diluvion

s.19(5) – Cannot update if it would be unfair to do so s.19(7) – High Court can order amendment if result of

fraud

FUTURE – s.22 and Sch.2 of 2006 Act

Non-/Mistaken Registration under 1965 Act:– Sch2, para 3 – Non-registration of Town or Village Green

specifically recognised by or under statute – Sch2, para 5 – Town or Village Green wrongly registered as

Common Land– Sch2, para 8 – Town or Village Green covered by Buildings

before and since registration– Sch2, para 9 – Land not referred to Commons Commissioner

and incorrectly registered as Town or Village Green

FUTURE – s.22 and Sch.2 of 2006 Act

Mistakes can only be corrected under Schedule 2 when either:– (a) An application is made; or– (b) The authority makes and publishes a proposal

Schedule 2 subject to a cut-off date – WAG’s proposed date 31 December 2018

FUTURE – s.23 and Sch.3 of 2006 Act

Schedule 3 – Transitional period for updating registers in relation to ‘Qualifying Events’ which occurred after 2 January 1970

‘Qualifying Events’ relevant to Town and Village Greens – Historic Statutory Dispositions (Sch.3, para 2(2)(c) &(d))

WAG’s proposed transitional period – 2010 to 2014

FUTURE – Commons Registration Regulations?

Potential Changes to Application Procedure:– WAG propose that certain applications must be

referred to Planning Inspectorate Wales, inc:– Where the Authority has an interest in the outcome which would

undermine confidence in the Authority’s impartiality– Where the application is so contentious that the application

should be referred to a public inquiry– Any contested application under Schedule 2

– Likely to provide a ‘statutory footing’ for public inquiries held by Registration Authorities

– Fees for applications

Addendum - Redcar

R(Lewis) v Redcar and Cleveland BC [2009] EWCA Civ 3– Lawful sports and pastimes must be indulged in as of right:

s.15 of Commons Act 2006– “It must be shown that their user is such to give the outward

appearance to the reasonable landowner that the user is being asserted and claimed as of right” [35]

– Where no competing uses by local inhabitants and the owner, the concept of ‘nec vi, nec clam, nec precario’ will usually be determinative’[39]

– BUT it is not necessarily a sufficient condition [38]…..

Addendum - Redcar

– Where there are competing uses - whether the local inhabitants’ use has been sufficient to establish ‘as of right’ depends on an analysis of the manner and extent of the user [40]

– This is a question of Fact and Degree [40, 47, 49]– The extent to which the local inhabitants deferred (or did not

defer) to the owners use is a relevant factor:– “The greater the degree of deference, the less likely it was

that it would appear to the reasonable owner that [the local inhabitants] were asserting any right to the land”[49]