Bond Pearce

We commented last year on a decision in the High Court whereby Barratt Homes was able to defeat a Town or Village Green application by virtue of the fact that the land it had acquired from the Council had been appropriated by the Council for planning purposes.  Proposals for further reform to the Town or Village Green process are still being considered by the Government, but in the meantime another recent High Court decision has strengthened the position of a Local Authority which is subject to Town or Village Green applications. 

The latest decision in R(Barkas) -v- North Yorkshire County Council and Scarborough Council related to a playing field in Whitby.  It had been in use for nearly 60 years before an application was made for registration of the land as a Town or Village Green.  The issue was whether or not the inhabitants had indulged "as of right" in lawful sports and pastimes on the land for a period of at least 20 years.  The Inspector concluded that they had not as the land had been acquired and used for recreation purposes pursuant to statutory powers.  This meant that there was a right to use it rather than it being used "as of right".  He declined to recommend registration of the land as a Town or Village Green.  The Registration Authority accepted this and the Claimant issued proceedings. 

The land in question had been acquired by the predecessor authority, Whitby UDC, under Section 80 of the Housing Act 1936.  This included a power for the acquisition of land which included for use as recreation grounds to serve the local authority housing accommodation.  The Council made the recreation ground available to all members of the public.  The ability to rely upon Section 80 to defeat the TVG application was not restricted to where the land was only used by the Council's tenants who were the original benefitting parties of the recreation ground - the Judge commented that it would have been absurd to do so.

This is a further welcome decision for Local Authorities faced with applications for registration of their open space as Town or Village Greens.  Whilst it will very much depend upon the facts as to whether or not the statutory tests as to the purpose of acquisition are met, it is open to Local Authorities to seek to  argue their case by reference to the provision of recreation pursuant to statutory powers.

In the High Court, leave to appeal was refused and it is not yet known whether or not permission to appeal to the Court of Appeal has been successful.

This decision has been issued during the period that the Government is considering responses to the consultation on the reform of Town or Village Greens undertaken in the latter part of last year.  The current indication is that the Government hope to publish their response within the next few weeks with any reforms to follow on a time table yet to be confirmed.

Developers always need to be alive to the risk that land being acquired for redevelopment could be susceptible to an application and a thorough due diligence exercise is always advised.