Under section 15 of the Commons Act 2006, anybody can apply to the county council to register land as a town or village green if a significant number of local people have used the land for lawful sports and pastimes "as of right" continuously for at least 20 years. 

In this case, the owners of a golf course pointed out that no village green rights could arise on their land, despite evidence that local people used the land for dog walking and bird watching. The landowners argued that locals would generally "defer" to golfers whenever paths crossed, which should be sufficient to overcome the claim. The Supreme Court disagreed. Walkers and bird-watchers had used the course openly, and for a continuous period of over 20 years without forcing their way onto the land. There was no indication that the landowner had specifically "licensed" their presence. The Court therefore held that the legal test was met, and there was sufficient evidence to establish that the land was being used as a village green "as of right", which should be registered as such. The impact was considerable: a proposed development of 300 houses, a sports centre and a swimming pool on the town's Coatham Common would have to be halted.

Academies should take careful note of the decision, because lots of school playing fields could fall prey to village green applications if they are regularly used by local people for recreational purposes outside normal school hours. If an application is successful, it is likely to obstruct redevelopment plans and may seriously impact the value of the land. Your legal adviser may be able to help you minimise the risks, but we recommend that full due diligence is carried out on any new acquisition or development proposal." 

For more information on these issues please contact

Patrick Tierney

or your usual Lewis Silkin contact