Village Green Decision Supplies Blueprint for Stymieing Development

Most people – and certainly those who have been involved in an opposed planning application – know what a NIMBY is but, following a case heard in the Supreme Court, we may now see the rise of NOOViGs (not on our village greens). The reason for this was the victory of a group of residents in Redcar, who wished to oppose a proposal to develop land which included part of what had been a golf course.

They did so by applying for the land in question to be registered as a village green under a procedure set out in the Commons Act 2006. This allows land to be registered as a village green if ‘a significant number of the inhabitants of any locality, or any neighbourhood within a locality, have indulged as of right in lawful sports or pastimes on the land for a period of 20 years’.

The land was used by members of the public for recreation. If whilst out walking they encountered golfers in the course of play, it was common practice for them to wait until play was finished or until the golfers signalled for them to pass.

The original planning application was approved by the inspector, largely because he recognised the superior right of golf club members to use the land compared with the general public. This meant that the general public had not used that part of the land ‘as of right’.

However, the Supreme Court took a different view, ruling that the legislation was concerned with the nature of the use of the land and it was not necessary to examine whether the users of the land believed they had the right to use it as they did. What mattered was whether a significant number of members of the public had openly used the land for recreational purposes without any formal agreement for its use and without the landowner taking steps to assert its right to prevent it.

Applying that test, the deference showed to the golfers was a matter of normal civility and did not indicate that the non-golfing users of the land were not using it as of right.

The decision is likely to be used as a blueprint for arguments against developments elsewhere as NOOViGs seek to use the Act to prevent unpopular development projects. Registration of land as a village green will act, in effect, as a permanent block on development.