In its recent decision in R (on the application of Cotham School) v Bristol City Council, the Court has confirmed that the use of suitable signs can prevent land from being registered as a town or village green. This is good news for landowners and developers, as this is a tactic increasingly being used by local residents to defeat planning applications in their area for residential development.
The use by local residents of an area of land “as of right” for a period of 20 years or more for sports and pastimes can give rise to the land being registered as a town or village green, thereby preventing the development of the land. Use “as of right” is an essential requirement to the registration of land as a town or village green. Use of the land by force, stealth, by permission of the landowner, or carried out contentiously can prevent such use being “as of right” and thereby defeat a claim.
In this case, Cotham School had erected signs during the relevant 20 year period which read “Members of the public are warned not to trespass on the playing field” and “Private grounds”. The inspector had held that the signs made the public’s use of the land contentious and therefore not “as of right”. The Inspector therefore recommended that the claim be rejected.
The Council decided not to follow the Inspector’s recommendation and registered the land as a town or village green. The Council had taken the view that as the land had continued to be used despite the presence of the signs, that the message given by the signs had changed over time so as to become ineffective, such that the use was no longer contentious and had become “as of right”.
The Court held that where a Council decides not to follow the Inspector’s recommendation, that adequate and sufficient reasons must be given. It also confirmed that (unless a higher court directs otherwise) signs displayed on the land making it clear that use of the land by the public is not permitted, can make the public’s use of the land unauthorised and not “as of right”, provided that there is no material change of circumstances after the erection of the signs. It is important to ensure that an adequate number of signs are erected for the size of the land and that the signs are clearly visible.
Irwin Mitchell LLP