Court clarifies circumstances in which protection can be removed from incorrectly registered village greens

In two related cases the Court restored TVG status to an area of land in Huddersfield which was de-registered by the High Court after 14 years, but refused to overturn its decision in relation to another site in Weymouth that had the protection removed after nine years.

Both cases were brought under the old Commons Registration Act, which gives courts the power to undo a registration where it is deems it just to do so.

Lord Justice Patton said that both cases raised "similar issues" on whether it was "just" for the court to undo the registration of land as a town or village green where the action was brought many years later by a purchaser looking to develop that piece of land.

"It is clear from [the relevant law] that an error in the original registration is not enough in itself to justify the rectification of the register," he said in the Huddersfield case. "The court must also reach a positive conclusion that it would be just to do so."

"When deciding whether to make the order [the judge] has to balance the landowner's claim to free his land from rights over it which should never have been granted against any countervailing considerations of prejudice which the local inhabitants are entitled to rely upon to justify the maintenance of the register in its existing form," the ruling said.

Under current laws, land which has been used for recreational purposes for the preceding 20 years can be registered as a village green. Once land has been registered as a TVG, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the green or interrupt the public's use and enjoyment of it.

Lord Justice Patton said that although delay in seeking the rectification of an incorrectly registered TVG was a "relevant factor", it had to be balanced against the "interests of the landowner in obtaining the vindication of his own legal rights".

Property law expert Anna Cartledge of Pinsent Masons, the law firm behind Out-Law.com, suggested that the cases signalled a new focus on the part of landowners and developers on undoing existing TVG registrations rather than fighting off applications in respect of newly acquired sites. The rulings provided some guidance on when such an application was likely to be successful, she said.

"Many of the landmark decisions in respect of TVG applications in recent years have been decided in favour of local residents, effectively sterilising land parcels from being used for new development," she said. "However, the recent findings highlight that it is possible for developers to successfully challenge past decisions regarding the registration of land as a TVG – and, if successful, the land could be restored to its full potential value for development. In this context, developers may be encouraged to reconsider decisions in respect of land previously registered."

Last year the Department for Environment, Food and Rural Affairs (Defra) published proposals intended to make it harder for land to be registered as a TVG for the purpose of frustrating development. Its consultation (56 page / 1.2MB PDF) included a new 'character test' ensuring that land subject to an application is closer to the traditional notion of a 'village green', as well as a bar on including any land proposed for development or currently the subject of a planning application as part of an application to register land as a TVG. The Government's response to this consultation is expected shortly.