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Town and village green applications

Explanation of the process and application pack

Under Section 15 of the Commons Act 2006 (as amended) members of the public may make an application to the County Council as the Commons Registration Authority ("CRA") to register land as a new town or village green (in law there is no difference between the two just where they are situated i.e. within an urban area or in the countryside). The CRA is responsible for maintaining registers of town and village greens and common land.

A town or village green registered under the Commons Act 2006 effectively gives the rights for local inhabitants to engage in lawful sports and pastimes, which can be formal or informal in nature e.g. organised team games or events (for example a cricket match or a village fete) or informal and unstructured e.g. children playing, a family walking, dog walking, fruit picking.

Court decisions have determined that the following will constitute lawful sports and past times: -

  • Archery and shooting
  • Cricket, formal and informal
  • Riding horses
  • Children playing
  • Village dancing
  • Maypole celebrations
  • Fishing
  • Football and rounders
  • Picnicking
  • Walking the dog
  • Wandering
  • Sketching, drawing and painting

Taken together and depending upon their inherent nature the lawful sports and pastimes must have been exercised continuously, albeit perhaps seasonally, during the period specified in the application. There are other elements to the legal test under Section 15 of the Commons Act 2006 this includes demonstrating that the land has been used by local inhabitants for a period of 20 years leading up to the application submission and that this use has been "as of right" i.e. without licence or permission or force or secrecy.

If the land is successfully registered by meeting the legal tests set out within the legislation then the land is protected in perpetuity against unlawful interference e.g. development unless it is for the better enjoyment of the land.

The Commons Act 2006 and The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 set out how an application can be made and the form of application which must be used (Form 44 and ) and the procedure to be followed by the CRA on receipt of an application. This procedure has been recently modified in light of the provisions set out in the Growth and Infrastructure Act 2013 ("GIA") this is discussed in more detail below.

On receipt of Form 44 from an applicant the CRA must date stamp the application with that current days date.

Under the provisions set out in the GIA the CRA will not write to the applicant to acknowledge receipt of the application until it has contacted the local planning authority, Planning Inspectorate and the Waste Authority to establish if there have been any "Trigger Events" which would prevent the application from proceeding. A Trigger Event could include the lodging of a valid planning application to develop the land.

If there is a Trigger Event the CRA cannot process the application until there is a corresponding "Terminating Event" e.g. in respect of lodging of a valid planning application a "Terminating Event" would be (a) a withdrawal of the planning application; (b) a decision to decline to determine the planning application (c) refusal of planning permission and all appeal processes having been exhausted (d) where planning permission is granted, the period within which the development to which that permission relates expires without the development having been begun (For more details of Trigger Events / Terminating Events please see DEFRA's guidance on its website at www.gov.uk/defra)

If there is no Trigger Event or there has been a Terminating Event in respect of a previous Trigger Event the CRA can acknowledge receipt of the application and proceed to the next stage.

What is the procedure the Commons Registration Authority follow in order to determine the application?

The CRA has to check whether the application has been duly made, e.g. signed and dated, accompanied by a statutory declaration. The applicant must also have completed all the relevant boxes in Form 44, especially the section relating to "Locality / Neighbourhood within a Locality" this is often an area that applicants do not complete correctly and which will affect the outcome of their application, therefore we would urge applicants to consult the guidance as to locality/neighbourhood issued by Defra and the Open Space Society.

This stage is what is referred to as 'validating an application'.

If the application has not been completed correctly the regulations require the CRA to notify the applicant of the error and give them the opportunity to correct the omission. If after further information has been supplied by the applicant, the application is still deemed to be defective then the CRA can reject the application at this stage.

PLEASE NOTE: the CRA is impartial in the application process and therefore cannot provide legal advice to any party. Applicants are advised to seek independent legal advice from either the Open Spaces Society or a solicitor.

Once the application has been duly made the CRA will carry out a number of checks before proceeding to formal advertisement of the application. The checks include confirmation that the land is not already registered as a town or village green or common land, whether any public rights of way cross the site and whether the land is already registered as public open space. The CRA will also require confirmation from the applicant that any evidence provided by their witnesses (which will include their personal details) can be copied to the landowner(s) and any interested third parties to comply with Data Protection legislation.

The information provided in the application pack (including witness statements and evidence forms) will become public knowledge and be provided to the land owner and other interested parties. The data is collected by Gloucestershire County Council in accordance with the data protection principles in the Data Protection Act 1998. The purpose for collecting the data is to enable the County Council to investigate the claim for a town or village green in accordance with the Commons Act 2006.

In addition the Council may be required to release personal information in connection with the application under the Freedom of Information Act 2000 / The Environmental Information Regulations 2004.

The CRA will then proceed to formal advertisement of the application in a local newspaper, depositing documents locally (e.g. with the Parish Council and/or local libraries for public inspection), notifying interested parties and placing notices and location plan on site.

There is 6 weeks from first advertisement in the local newspaper for people to make representations (either in support or objection) on the application.

If the CRA receive objections or representations within that period it must take them into account in determining the application. Under the regulations it may also consider any representations it receives before finally determining the application.

If objections are received during the six week period then the regulations also require the CRA to forward the objections to the applicant for comment. There is a process of exchange of correspondence between the applicant and any objectors to ensure that the salient issues pertinent to the application are dealt with accordingly. This ensures that all parties have the opportunity at an early stage in the process to exam each other's evidence and comment on it, this aims to tease out the main differences between the arguments for and against the application.

Where there is a conflict of evidence or dispute in respect of the legal requirements set out in Section 15 of the Commons Act 2006 the CRA is required to consider whether the application should be referred to an independent inspector (normally a barrister) in order for a non statutory local inquiry/hearing to be held.

The inspector may consider a pre meeting necessary, in order to set a timetable ('directions') to deal with any outstanding issues prior to holding the inquiry. The pre meeting will not deal with the evidence relating to the application but will deal with process and procedure of the inquiry.

After the conclusion of the inspectors directions an inquiry date will be set.

The parties will give evidence in accordance with the directions and have the opportunity to cross examine witnesses. At the conclusion of the inquiry the inspector is likely to make a site visit (accompanied by representatives from each side) and then will prepare a report with recommendations to the CRA as to whether to accept or reject the application.

A report is prepared by the Head of Legal Services to the county councillors' who sit on the council's Commons and Rights of Way Committee ("CROW") enclosing the inspectors report and recommendations, inviting CROW Committee to decide whether to register the land as a town or village green, taking into account the evidence provided by the parties and the inspectors recommendations.

Members of the public may attend any meeting of the CROW Committee; however, there are no speaking rights to address the Committee other than via the public question procedure as set out in the Council's Constitution.

The parties will be notified of the Committee's decision following the Committee. If CROW Committee resolves to accept the application the Commons Register and accompanying map are updated. There is no right of appeal within the commons legislation against the decision of the CRA.

The Open Spaces Society is a source of useful information on town and village greens and produces a number of helpful publications on the subject including Getting Greens Registered - a guide to the law and procedure for town and village greens, and Our Common Land - the law and history of common land and village greens. Getting Greens Registered also includes an evidence questionnaire to use in support of a claim for registration. The Society can be contacted at:

25A Bell Street,
Henley-on-Thames,
Oxon RG9 2BA,
Telephone 01491 573535,
www.oss.org.uk

General information about common land and town and village greens, the implementation plans for other sections of the Commons Act 2006, copies of guidance and the application form (Form 44) can be accessed via Defra's website at: https://www.gov.uk/town-and-village-greens-how-to-register

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