The Commons Act 2006 provides a mechanism whereby applications can be made to register land as a town or village green. If successful, an application can ultimately operate so as to prevent redevelopment of the land in question.

A number of pre-conditions have to be satisfied in order for an application to be successful. One of the key requirements is that a significant number of the inhabitants of the locality must have indulged as of right in lawful sports and past times on the land for at least 20 years.

An application made under the 2006 Act (R (On the Application of Christine Barkas) (Appellant) v North Yorkshire County Council (Respondent)) has now been considered by the Supreme Court and represents a significant and binding precedent. The case concerned a recreation field which had been used as such since at least 1948 and was set out and maintained as a recreation ground under section 80 of the Housing Act 1936. Its status under the Housing Act proved to be crucial in that the Inspector determined that the use of land by members of the public for recreational purposes had been pursuant to the legal right (since it was a playing field and not simply an area of land which they used and ultimately acquired rights over). The existence of the legal rights under Housing Act prevented use ‘as of right’ (as required under the Commons Act 2006) and consequently the application failed.

Local and other public authorities will, no doubt, breathe a sigh of relief following this judgement. The additional hurdle to the development of playing fields, recreation grounds and open space which Commons Act claims represented, have been laid to rest (for the time being at least).

If you wish to discuss any of the points raised in this blog please contact me.