A recent Court of Appeal case - Leeds Group plc v Leeds City Council - highlights the need for landowners to be extra vigilant where unauthorised third party recreational use of their land is concerned
Before 30 January 2001, anyone seeking to register land as a village green had to be predominantly from an administrative area known as a 'locality'. This could be difficult to establish where the locality was very large.
Section 98(1A) of the Countryside and Rights of Way Act 2000 was introduced to address this and allow applications by inhabitants of a smaller area within the locality - a so-called 'neighbourhood'.
The issue for the court was whether the change brought in by Section 98(1A) was retrospective in calculating the statutory use period of 20 years in the case of a 'neighbourhood', or whether an applicant could only rely on this provision in 2020 at the earliest.
It was contended that it would be 'grotesquely unfair' on landowners if the period was retrospective, as they would not have taken any steps to prevent such use before 30 November 2000, since they had no reason to do so.
Dismissing that argument, the court held:
- The 2000 Act is clear and unambiguous in applying the new neighbourhood criterion from 30 January 2001, not 2020.
- The 2000 Act refers to a 'significant number' of inhabitants using the land and the 20 year period running to the date of the application. It would be absurd for those elements to have immediate effect, but the 'neighbourhood limb' being postponed for 20 years.
- Even in the most extreme hypothetical case, a landowner would have had two months between 30 November 2000 (the date of enactment) and 30 January 2001 (when the new neighbourhood element came into effect) to take action. That is sufficient time to discontinue the use and the scope for registration.
- To become a legal right, the use must be more than trivial or sporadic. That is enough to alert a landowner to take appropriate action. Unless he carried out a detailed investigation, he would not know if the users are from a neighbourhood or locality in any event.
This decision will be disappointing to landowners challenging village green applications on their land. Those wishing to safeguard their property should always take immediate steps upon becoming aware that their land is being used by unauthorised third parties.
Simple actions such as locking gates, fencing gaps and boundaries, erecting appropriately worded notices, and turning away unauthorised users could make the difference between unlocking the development potential of land and having to retain it as a village green.