Property law expert Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, said that it was wrong that tidal beaches and golf courses could be deemed to be TVGs because those forms of land did not reconcile with the public's perception of what traditional TVGs are.
Desai was commenting after the Court of Appeal ruled to overturn a judgment by the High Court last year which had quashed the registration of an area of a private beach in Newhaven as a TVG.
High Court judge Mr Justice Ouseley had determined that tidal beaches can in principle be registered as TVGs even if they are submerged by the sea part of the time, but he ruled in favour of land owner Newhaven Port and Properties Limited (NPP) in finding that such a registration was not compatible with the land's use as an operational port.
However, that finding has now been overturned via a joint appeal by the registration authority, East Sussex County Council, and the registration applicant, Newhaven Town Council.
In a split two-to-one ruling, the Court of Appeal judges ruled that the public had not "by right" been granted use of a private beach in Newhaven. Instead, the public had "use as of right" by virtue of the fact they had taken part in "lawful sports and pastimes" for at least 20 years until land owners NPP fenced off the area in 2006.
Users of land may apply for registration of the land as a town or village green under section 15 of the Commons Act 2006. The requirements are that a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and that they continue to do so at the time of the application.
The land must have been used "as of right" rather than "by right". Land used "as of right" according to case law is used where no force or stealth is involved and where there is no permission from the owner. Land is used "by right" if it is appropriated for the purpose of public recreation by the local authority under an express statutory power to provide and maintain it as a recreation ground.
Once a piece of ground is listed as a town or village green, the use to which owners can put the land is extremely limited.
In the Court of Appeal ruling, Mr Justice Richards said that, from a reading of the Commons Act, there was no "sensible scope" to prohibit tidal beaches from being registered as TGVs. Desai said the view was consistent with current laws, but warned that an opportunity to prevent such "unconventional" TGV registrations in future could be missed because of the current direction of proposed reforms before Parliament.
"The Court of Appeal in this case considered the same court's decision in another case involving North Yorkshire County Council," Desai said. "In that case the court refused to register land as a village green because the council appropriated and maintained the property as a recreation ground pursuant to the Housing Act 1985. As a result, the public use of the land was by right rather than as of right."
"However, the Newhaven Port judgment was distinguished from this previous case on the basis that the byelaws in question only gave an implied revocable permission to the public to access the harbour and engage in various sports and activities. They did not confer any right on the public to use the land," the expert said.
"This decision is likely to be controversial as the nature of the land in question, a beach forming part of an operational port, does not accord with the general public's conception of a traditional village green. In another case involving Redcar and Cleveland Borough Council in 2010 there was an equally controversial decision in which the Supreme Court held that part of a golf course could form a village green," Desai said.
"However, neither the Commons Act 2006 nor the common law limits registration to such conventional greens," he added. "Therefore, however much the judgment sparks debate on what should properly be considered a village green, it is consistent with the existing law and the courts' approach to it."
"Last year's consultation on the reform of the village green regime put forward a character test. This would have restricted the type of land that could be registered as a town or village green to ensure that unconventional greens, such as beaches, would not have been able to be registered. However, following strong opposition and lobbying from the Open Spaces Society and other groups, the Growth and Infrastructure Bill, containing village green reforms, did not introduce a character test. This decision was on the basis that it would introduce subjectivity, unreasonable uncertainty and therefore cost to the regime," he said.
"In my view, a character test would have been a welcome development and prevented decisions such as the Newhaven Port case. Without a character test, we will no doubt see the registration of more and more beaches and other such pieces of land as village greens under the new legislation. I anticipate that, in years to come, we will look back at the failure to introduce a character or similar test as an unfortunate missed opportunity to change the law for the better," Desai said.