Protecting against town or village green registration

The Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013 brings into force with effect from 1 October 2013 (in so far as not already in force):

• S.13 Growth and Infrastructure Act 2013 (GIA), which amends s.31 Highways Act 1980 (Highways Act) and allows the Secretary of State to make regulations about statements and maps deposited and declarations lodged under s.31 (6) to negative an intention to dedicate a way as a highway; and
• S.15 GIA, which inserts new ss.15A and B into the Commons Act 2006 (Commons Act) that allow a landowner in England to deposit a statement and map for the purpose of bringing to an end a period of recreational use, as of right, on the landowner's land.

In exercise of the powers conferred by ss.13 and 15 of the GIA, the Secretary of State has made The Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013 (2013 Regulations) which also come into force in England on 1 October 2013.

The 2013 Regulations apply to applications to: deposit a statement and map, or lodge a declaration, under s.31 (6); and to deposit a statement and map under s.15A (1). They contain provisions which: prescribe the form the application must take; permit combined applications under both provisions; determine when a statement made under s.15A (1) is regarded as deposited; set out the duties of an authority upon receipt of a valid application; and set out the duties of a commons registration authority to maintain a register of statements and maps deposited under s.15A (1).

S.31 (6) contains a procedure which a landowner can follow to rebut a presumption of deemed dedication of a public right of way. The landowner must deposit with the appropriate authority a map of the land (to a specified scale) and a statement identifying any ways that the landowner admits to being a highway. Currently, the landowner must then lodge a statutory declaration with the authority stating that no additional land has been dedicated within the first, and every subsequent, period of ten years from the date of deposit of the map and statement, or the date that a previous declaration was lodged. The duties of the appropriate authority to maintain a register of statements, maps and declarations are contained in s.31A and the Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007 (2007 Regulations). These Regulations are now amended to: replace each reference to a statutory declaration with a reference to a declaration; extend the period within which a declaration can be lodged following the deposit of a statement and map (or previous lodgement of a declaration) from 10 years to 20 years; and provide for paper registers kept under s.31 (6) to be held at a specified office or the principal office of the authority.

The 2013 Regulations apply to any application made on or after 1 October 2013 to: deposit a statement and map under s.31 (6); lodge a declaration under s.31 (6); and deposit a statement under s.15A (1).

The appropriate authority in relation to a statement and map deposited under s.15A is a commons registration authority which under s.4 Commons Act is a county council; a district council for an area without a county council; or a London borough council. The appropriate authority in relation to a statement and map deposited, or declaration lodged, under s.31 (6) is a county council, metropolitan district council, London borough council or the Common Council in the City of London.

Any application must be: in the form, or substantially the same form, as that set out in Schedule 1 to the 2013 Regulations, with such insertions and omissions as the circumstances require; signed by each and every owner of the land, their duly authorised representative or where a body corporate or an unincorporated association, by the secretary or other duly authorised officer; either accompanied by an Ordnance map at a scale of not less than 1:10,560 showing the boundary of the land to which the application relates in coloured edging or refer to a map previously deposited under the 2013 Regulations or (before 1 October 2013) under s.31 (6); and accompanied by the fee specified by the appropriate authority.

Where an applicant is unable to read or write, Regulation 2(3) provides for the application to be supported by a certificate made by a conveyancer (as defined in Rule 217A (1) of the Land Registration Rules 2003).

A statement made under s.15A (1) will be regarded as deposited with a commons registration authority when a valid application is given to the authority. A combined application made under both s.31(6) and s.15A (1), will be regarded as deposited with the appropriate authority by reference to ss.322(2) and 322(3) Highways Act (which determines when a single application under s.31(6) is regarded as deposited).

Regulation 4 prescribes the steps that an appropriate authority must take upon receipt of a valid application. These steps include requirements to: publish notice of the application on the appropriate authority's website; serve email notice on anyone who has provided the appropriate authority with an email address for that purpose; and for not less than 60 days, post notice of the application at or near an obvious place of entry to the land or, if there is no obvious place of entry, at least one conspicuous place on the boundary. If the notice is removed, obscured or defaced without fault on the part of the appropriate authority before the 60 days has elapsed, the authority is treated as having complied with this requirement. The notice must be in the form, or substantially the same form, as that set out in Schedule 2 to the 2013 Regulations with such insertions and omissions as the circumstances require.

S.15B (1) requires each commons registration authority to maintain a register of prescribed information about statements and maps deposited under s.15A. That duty may be discharged by the prescribed information being kept in a newly created part of the register currently maintained under s.31 (6). Regulation 5 prescribes the information the register must contain and Regulation 6 the manner in which the register must be kept. The register must be kept in paper and electronic form. The electronic form must be available for public inspection on the appropriate authority's website. An appropriate authority has power to remove an entry from the register if satisfied it contains a material error. The appropriate authority must give not less than 28 days' notice to the landowner of the appropriate authority's intention to remove an entry.

Landowners who are concerned about the potential for town or village green registration applications in respect of their land will therefore no doubt wish to consult with their professional advisors in readiness for depositing the requisite statement and map to bring to an end any ‘as of right’ recreational use.