Town and Village Greens in Wales: Past, Present and Future

1. Town and Village Greens in Wales: Past, Present and Future Morag Ellis QC and Rob Williams

2. PAST –s.22(1) Commons Registration Act 1965 PRESENT – s.15 Commons Act 2006 – The Commons (Registration of Town or Village Greens) (Interim Arrangements) (Wales) Regs 2007 FUTURE – Part I of Commons Act 2006 (s.16, s.17,s.19 &s.22) – The Commons Registration (Wales) Regs 20?? OVERVIEW

3. Is section 22(1) of the 1965 Act still of relevance? Test: - [for a period of] not less than 20 years - …a significant number of the inhabitants… - …of any locality, or of any neighbourhood within a locality… - …have indulged in lawful sports and pastimes - …as of right.. -… and continue to do so PAST – s.22(1) of 1965 Act

4. PRESENT – s.15 of 2006 Act • Section 15 • s.15(2) replicates 1965 Act test BUT must be read with s.15(7) – permission after 20 years use does not negate ‘as of right’ use • s.15(3) – if use land as of right ceases on or after 6 September 2007, applicants have a 2 year period of grace in which to make application.

5. PRESENT – s.15 of 2006 Act • Section 15 • s.15(4) – if use of land as of right ceased before 6 September 2007, applicants have a 5 year period of grace in which to make application……BUT • s.15(5) – s.15(4) will not apply if: (a) planning permission before 23 June 2006; (b) construction works commenced before that date on land in respect of which planning permission was granted; And (c) the land has or will become permanently unusable

6. PRESENT – s.15 of 2006 Act • Section 15 • s.15(6) – any period of statutory closure to be disregarded when determining whether 20 years use as of right • s.15(8) – Owner of land can register it voluntarily as a green. No need to satisfy criteria in s.15(2) to s.15(4)

7. FUTURE • Implementation of Commons Act 2006 • ENGLAND - Pilot Schemes & The Commons Registration (England) Regulations 2008 • WALES – WAG hope to commence ‘key sections’ of 2006 Act from 2010.

8. FUTURE – Registers • Regulations to provide form and content of Registers – likely to be similar to Registers under 1965 Act EXCEPT • Electronic/Digitised Registers by 2011.

9. FUTURE – s.19 of 2006 Act • s.19(1)&(2) – Authorities may amend or correct mistakes in the Register in prescribed circumstances: • Mistakes made by the Registration Authority • Amendment does not affect extent of registered land • Duplicate Entries • Updating names and addresses • Updating to take account of accretion or diluvion • s.19(5) – Cannot update if it would be unfair to do so • s.19(7) – High Court can order amendment if result of fraud

10. FUTURE – s.22 and Sch.2 of 2006 Act • Non-/Mistaken Registration under 1965 Act: • Sch2, para 3 – Non-registration of Town or Village Green specifically recognised by or under statute • Sch2, para 5 – Town or Village Green wrongly registered as Common Land • Sch2, para 8 – Town or Village Green covered by Buildings before and since registration • Sch2, para 9 – Land not referred to Commons Commissioner and incorrectly registered as Town or Village Green

11. FUTURE – s.22 and Sch.2 of 2006 Act • Mistakes can only be corrected under Schedule 2 when either: • (a) An application is made; or • (b) The authority makes and publishes a proposal • Schedule 2 subject to a cut-off date – WAG’s proposed date 31 December 2018

12. FUTURE – s.23 and Sch.3 of 2006 Act • Schedule 3 – Transitional period for updating registers in relation to ‘Qualifying Events’ which occurred after 2 January 1970 • ‘Qualifying Events’ relevant to Town and Village Greens – Historic Statutory Dispositions (Sch.3, para 2(2)(c) &(d)) • WAG’s proposed transitional period – 2010 to 2014

13. FUTURE – Commons Registration Regulations? • Potential Changes to Application Procedure: • WAG propose that certain applications must be referred to Planning Inspectorate Wales, inc: • Where the Authority has an interest in the outcome which would undermine confidence in the Authority’s impartiality • Where the application is so contentious that the application should be referred to a public inquiry • Any contested application under Schedule 2 • Likely to provide a ‘statutory footing’ for public inquiries held by Registration Authorities • Fees for applications

14. Addendum - Redcar • R(Lewis) v Redcar and Cleveland BC [2009] EWCA Civ 3 • Lawful sports and pastimes must be indulged in as of right: s.15 of Commons Act 2006 • “It must be shown that their user is such to give the outward appearance to the reasonable landowner that the user is being asserted and claimed as of right” [35] • Where no competing uses by local inhabitants and the owner, the concept of ‘nec vi, nec clam, nec precario’ will usually be determinative’[39] • BUT it is not necessarily a sufficient condition [38]…..

15. Addendum - Redcar • Where there are competing uses - whether the local inhabitants’ use has been sufficient to establish ‘as of right’ depends on an analysis of the manner and extent of the user [40] • This is a question of Fact and Degree [40, 47, 49] • The extent to which the local inhabitants deferred (or did not defer) to the owners use is a relevant factor: • “The greater the degree of deference, the less likely it was that it would appear to the reasonable owner that [the local inhabitants] were asserting any right to the land”[49]