Village Greens and Public Rights of Way: Don't Get Caught Out

It might surprise you to know (and you probably have other things on your mind right now), that any land to which the public have had access "as of right" for "lawful sports and pastimes" for 20 years or longer, could potentially be designated a village green.

This might not be a massive deal to you now, but thinking on, it could have dramatic implications in the future, most significantly, the possibility of destroying any development potential.

The recent judgement of the Supreme Court in T W Logistics Ltd (Appellant) v Essex County Council & another (Respondents) [2021] UKSC 4 underlines again the risks to landowners of claims being made to register land as a town or village green on the basis of 20 years' usage. The case is a reminder that it isn't only the traditionally thought of well-tended grassed areas which spring to mind when one thinks of a village green that are at risk. In this case,  the Supreme Court held, rather surprisingly, that a town or village green had been established even though the land in question was part of a working port!

There are other cases where village greens have been established in rather unusual locations, including an area of rocks used for the mooring of boats, partly submerged scrubland and disused quarries.

Another similar risk for landowners to be aware of is of public footpaths becoming established by the public using a particular route "as of right" for at least 20 years.

The consequences of the registration of either a village green or a public right of way can be catastrophic for the development potential of land. Once registered, nothing can be built on a village green, thus eliminating any development value, unless a successful application for de-registration is made. De-registration will normally only be granted if suitable replacement land is provided. It is a complex, time-consuming and expensive process which is very uncertain as to outcome. Similarly, if public rights of way are established across a site it may be more difficult to develop.

Although obtaining a diversion order under s.257 Town and Country Planning Act 1990 is a much more straightforward process than de-registering a village green, it is still, potentially, lengthy and expensive. These dire consequences are entirely avoidable.

What steps can a landowner take to prevent the establishment of a village green or a public right of way?

These are our recommendations:

1. Physically prevent access to the land. Ensure the boundary walls/fences/hedges are kept in good repair and gates are locked. Consider putting up signs such as "Private land. No unauthorised access". You will need to be vigilant if adopting this solution - regularly inspecting fences and gates to make sure they have not become damaged such as to facilitate access. Note, however, that where the public break down a fence to gain access they will likely fall foul of the "as of right" rule - see 2 below.
2. Give permission for the public to access the land. The 20 years' use to establish either a village green or a public footpath has to be "as of right" - i.e. without force, without secrecy and without permission. If the landowner gives permission for the public to access the land the requisite period of use as of right cannot be established. Signs should be prominently displayed stating that the use of the land is with the owner's permission, which may be withdrawn at any time. You will need to regularly inspect to make sure the signs have not been defaced or torn down.
3. Finally there are legal mechanisms in s.31(6) of the Highways At 1980 and s.15A(1) of the Commons Act 2006, which allow a landowner to stop any period of time relied on to establish a public footpath or village green. A statement is deposited with the relevant local authority(s) in a prescribed form, which is then registered as a local land charge. The statement identifies any existing public rights of way on the land, the existence of which the owner admits, and confirms that no additional rights of way have been granted by the landowner. The effect of the deposit of the notice is to stop time running towards any 20 year period proposed to be relied upon to establish rights of way and/or rights for the public to engage in lawful sports and pastimes on the land covered by the notice. Further deposits every 20 years will permanently prevent time running against you. It should be noted, though, that the deposit of a statement cannot prevent a claim being established where the 20 years' use relied on expired before the statement was deposited.

The three suggestions we have made are not necessarily mutually exclusive - although one and two are clearly incompatible. There is nothing to stop you doing both one and three or two and three. Whatever steps you take, our advice is that landowners should review land which is not currently in use - especially where it has been empty for some time. Twenty years may seem like a long time but, especially where you have bought in recent years or maybe have an option over a piece of land, you may not be aware of the full history. Taking these simple steps could save you a major headache and avoid a major loss of development value.

If you any questions or concerns, please do not hesitate to contact us.