Common Land/Village Green Update - June 2013

Recent news on skateboarders applying to register the Southbank undercroft as a village green (frustrating redevelopment plans if they do) and the recent registration of a beach as common land show how unlikely areas used for recreation can gain legal protection.

Here we update on the most recent cases - the trend of decisions favouring applicants for registration seems to continue, sometimes with surprising results.

Beaches as Common Land

The Court of Appeal in Newhaven Port and Properties Limited v East Sussex County Council ruled that a tidal beach was registrable as a town or village green. A beach being within the concept of common land is not the only surprising aspect of the decision, which concentrates on the fairly technical question of whether the recreational use was permissive (and so not capable of being common land) or 'as of right'. Interestingly -

Land can be a town or village green even if such use and protection is incompatible with the landowner's statutory functions (in this case as a Port Authority) Byelaws existed to regulate the use of the beach (dogs only on leads etc) but were not enforced and there were no signs on the beach to this effect. As no overt or positive act by the Landowner to enforce the byelaws was made during the relevant 20 year period, the Court held that recreational use was not with permission. Some of the land was only uncovered for a few moments a day, and the boundary of the land on the seaward side changed constantly - this does not prevent registration. The qualifying recreational use does not have to be the sole or dominant use nor does it have to be physically possible over the whole area. This case is under further appeal and a decision on appeal on human rights grounds is awaited.

Use as of right

In Barkas v North Yorkshire County Council, the Court of Appeal considered the distinction between use 'as of right' (necessary for registration), and use 'by right' (which would preclude registration) - this time the Landowners won. As the land was designated as...