New housing and commercial developments are increasingly encroaching on rural land as our villages and towns expand. However, they are also eating up green spaces within villages and towns. Public rights of access to land can have a bearing both for local communities looking to protect their green spaces and countryside, as well as for landowners looking to develop.
Village greens and common land are very important to local communities, but it is sometimes the case that these spaces are not adequately defined and protected in law, with the result that a community can lose these important facilities to the developers if they are not careful and fail to be vigilant and proactive when the threat of development arises.
One way to protect open space is to make a claim to register the land as a town or village green if a significant number of local residents have used it for sports and recreation as of right for a period of 20 years or more. Once this has been done a landowner cannot develop the land.
If, however, you are a landowner seeking to develop your land, you will need to establish what evidence there is that it has been sufficiently used by local residents. If there has been any use, the sooner you bring it to an end the better (either by physical prevention, or preferably by lodging a Deposit under the Commons Act). Also, a planning application to develop the land will stop any village green claim. Incidentally, the land may not actually be a village green as such – any land can qualify as a ‘village green’.
If you are thinking of purchasing a plot of land with the intention of developing it, you should make rigorous enquiries as to the existence of actual or potential ‘village green’ claims, by researching whether the public have been on the land at all, and if so in what circumstances.
You also need to be aware of existing or potential public rights of way, because they too can have a bearing on potential development. Don’t just rely on the local search; look on the County Council website for current/pending rights of way applications.
Development can be frustrated by local residents having used the land for access. It is not often fully appreciated that if somebody has used a route for long enough, they can acquire a private right of way for their property; or their use can count towards a village green or public right of way claim. The landowner needs either to prevent use, or enter into a permissive scheme, and above all to remain vigilant and manage the land efficiently.
West Country solicitor Jonathan Cheal is a public rights of way specialist whose services are in demand across the country on a topic which can be a minefield for farmers and landowners alike. Jonathan works with Mogers Drewett which has offices in Bath, Sherborne and Wells. He also regularly attends market days at Frome Livestock Market.