The Commons Act was designed to protect land which has been used for recreational purposes for the preceding 20 years by allowing it to be registered as village green. Registering land in this way can prevent it from being developed, which is exactly what local residents managed to do in Redcar in the North East of England.
The case of Coatham Common goes further than before and causes serious concerns for developers and landowners alike.
The Coatham Common case
The case focussed on Coatham Common in Redcar. The common was owned by the local council and was used as a golf course until 2002, when Persimmon Homes agreed with the council to build a number of new homes on the site. Persimmon successfully applied for planning permission for the development. However, at a late stage in the proceedings there was an application from a local resident to register the common as a village green. This claim was based on the local residents using the golf course for recreational purposes such as dog walking. The local people would however leave if they were asked to do so by golfers.
The application was rejected in the High Court and the Court of Appeal because the law requires land which is subject to an application to be used for recreational purposes 'as of right'. This means that the use must not be by force, secrecy or through the permission of the landowner, so that it is clear to the landowner that by using the land the public are exercising their right to do so. The first two decisions found that, in deferring to the use of the common as a golf course, it was not clear enough to the council that local residents were exercising a right in using the land.
This was overturned in the Supreme Court, which held that the deference of the local inhabitants simply indicated that where there are two competing rights over land it is sometimes impractical for both uses to take place simultaneously. The local inhabitants did not need to show that the landowner realised that, in using the land, they were exercising a particular right. So long as they had been going onto the land 'as of right' for the prescribed 20 or more years, then the common could be registered as a village green.
The impact of the decision
The impact of the decision is that any open space which has been used by local residents for a similar purpose could be subject to registration as a village green. There is a wide range of ways in which land can be used recreationally, and the resulting breadth of the scope for village green registrations may not have been intended by Parliament. Nevertheless, landowners could find that the development value of their property is wiped out as a result of a successful village green registration because development cannot take place once land has been registered. They therefore need to be very careful to restrict the recreational use of their land, for example by erecting fencing and suitable signage.
Developers will also be concerned that they may incur development costs and go through the planning process for a new development, only to discover that an application to register the land as a village green has been lodged at a very late stage. At worst, such an application could prevent the development completely and at best it will cause delay and increase costs. In the Redcar case, the developer cut its losses and abandoned its plans.
Developers may therefore consider enclosing development land for a period of time before costs are incurred, to flush out any village green registrations at an earlier stage. They may also need to ask more probing questions of landowners as to the historic use of land earmarked for development.