Ever since it came into force in April 2007, section 15 of the Commons Act 2006 has been used by objectors to thwart development. This section allows any person to apply to the commons registration authority to register land as a town or village green where:
- A significant number of the inhabitants of any locality, or a significant number of the inhabitants of any neighbourhood within a locality, have indulged in lawful sports and pastimes on the land for a period of at least 20 years; and
- They have indulged in those sports and pastimes as of right.
Although subsequent legislation tightened up the requirements for registration, applications are still being made, and section 15 continues to be a potential thorn in the side for developers, since registration of land as a town or village green will render it undevelopable.
Section 15 has produced a good deal of litigation in recent years, but the good news is that a recent Supreme Court case sees a small shift in the case law in favour of developers. This case concerned the meaning of ‘as of right’ in section 15, a key requirement of that section.
You may think that the phrase ‘as of right’ suggests a right that has actually been granted by one person to another; for example, where one person grants another person a licence to access their land. In fact, it means the opposite. The phrase originates from the common law of acquiring an easement by prescription (i.e. long use) and means that the right has been acquired rather than granted. It cannot have been acquired by force, stealth or permission. So a right that has been expressly granted (i.e. granted by permission) cannot be enjoyed ‘as of right’. Rather, such a right is enjoyed ‘by right’. You may wonder why this distinction matters.
What it means in terms of the Commons Act is that if the public has used the land for the purposes of lawful sports and/or pastimes with the express permission of the landowner, then the use will not be ‘as of right’, and the land will not be capable of being registered under section 15 – a big plus for developers.
In the Supreme Court case, the Council had not given express permission to the public to use the land for sports or pastimes. However, it did hold the land specifically for the public for recreational purposes. The Supreme Court decided that this was tantamount to an express permission being granted, and as such the public were using the land ‘by right’ instead of ‘as of right’. The land was therefore not capable of being registered as a town village green under Section 15 of the Act.
What is the relevance of all this to developers? Well, the fact is that developers do purchase open land from local authorities. If the developer finds itself faced with an application for registration of that land as a town or village green, it is worth remembering that any period when the land was held by a local authority under legalisation that also gave the public rights to access the land will not count towards the 20 year period required for registration. The clock will only start running when the land is transferred out of the local authority’s ownership.
 Growth and Infrastructure Act 2013.
 R(Barkas) v North Yorkshire County Council
 Under Section 12(1) of the Housing Act 1985