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

OVERVIEW 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??

PAST – s.22(1) of 1965 Act 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

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.

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

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)

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.

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.

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

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

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 – WAGs proposed date 31 December 2018

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)) WAGs proposed transitional period – 2010 to 2014

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 Authoritys 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

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]…..

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]