Simple legal changes are readily available to reform the system and finally put an end to the great village green swindle.
The reforms available range from one comprehensive remedy to a selection of obvious improvements in the fairness and justice of the way that the system currently operates.
Genuine, Honest Public Open Spaces
There are now many statutes which confer modern powers on public authorities for the creation and management of recreational spaces for the public.
These powers did not exist before the industrial revolution, when the genuine, traditional real village green served a valuable social purpose.
The fakery of modern claims of bogus ‘village greens’ - taking land that belongs to involuntary third parties - must finally be comprehensively dealt with. Only legislators can do this. The genuine, traditional real English village green - that the vast majority of ordinary people understand by the term - would be left in place, fully preserved and protected.
What follows is a summary of the solutions readily available to end the great village green swindle.
Remedies: The Legal Framework
Complete Solution: abolition of Section 15
Much of the chaos and injustice stems from one small - but outlandishly complex - recent addition to the statute book.
This is Section 15 of the Commons Act 2006 (’Section 15’).
Section 15 allows the effective confiscation of privately-owned property in England or Wales. This loss is without any compensation for the property owner. There is no opportunity for reasonable negotiation, or indeed any negotiation.
The simple, obvious, necessary reform is therefore the abolition of Section 15. This would deal with all current and future problems in one fell swoop.
The United Kingdom is a modern social democracy. It espouses full property rights and - through HM Land Registry - it is planning to complete the entire land registration of the whole country.
Also, we have numerous statutes which now confer on public authorities modern powers for the creation and management of all the recreational open spaces that the public could ever need.
Therefore Section 15 (or any attempted replacement of it) can no longer be justified.
Section 15’s abolition could easily be accomplished over three stages, to ensure fairness for all concerned:
· Section 15 of the Commons Act 2006 should be given a sunset clause by Parliament;
· fair public notice should be given to all people who honestly believe that any genuine, traditional real village green has still been left off the registers;
· then, after the notice period has expired, Section 15 would be abolished.
This would finally bring a long overdue end to the great village green swindle that has grown up since 1999.
In the interest of completeness, the following alternative (but partial and therefore not wholly satisfactory) remedies to the swindle are also set out:
Solution: fair compensation for landowners whose property is taken for a village green
If a green registration application is successful then the property is taken, on the face of it for public use. But the property owner receives nothing in return.
The Fifth Amendment of the venerable US Constitution is highly relevant to ending the great village green swindle. Here is the relevant section:
‘…nor shall private property be taken for public use, without just compensation’
Solution: harmonise all the warnings on official forms that affect people’s property rights
Given all the serious consequences that flow from their use, the official forms that are used to claim somebody’s property as a ‘town or village green’ are woefully, criminally, inadequate.
The current poor form designs actively lead to frivolous, and/or dishonest, and/or malicious claims about a property.
The warning that is given on the town/village green claim form should be strengthened and brought up to date. There is no valid reason why it should not contain exactly the same warning that is now used on HM Land Registry forms which affect property interests:
If you dishonestly enter information or make a statement that you know is, or might be, untrue or misleading, and intend by doing so to make a gain for yourself or another person, or to cause loss or the risk of loss to another person, you may commit the offence of fraud under section 1 of the Fraud Act 2006, the maximum penalty for which is 10 years’ imprisonment or an unlimited fine, or both.’
In addition, a slightly modified version of HM Land Registry’s further warning on its property transfer forms would also be helpful. This would encourage diligence and honesty in respect of town/village green claims, to the benefit of everybody concerned:
‘Failure to complete this form with proper care may result in payment of compensation, or costs, or both.’
Remedies: Bring Back Common Sense
Solution: the Character Test
A character test should be adopted in law, when somebody claims that a property is a ‘village green’.
It should not be possible to register a village green unless it can be shown that it has all the character of a village green. For example, open and unenclosed in character, not substantially fenced-in, not cultivated, and immediately recognisably similar to the popular perception of a village green.
In other words, bring back the common sense that was in plentiful supply until the disastrous Sunningwell judgement of 1999.
Solution: reinstate the landowner’s traditional right to give permission to use the property
The law, since time immemorial, gave a landowner the right to permit others to use his property. So far as claims of alleged town and village greens are concerned, this ancient and obvious right was recently removed by a strange insertion into the Commons Act 2006.
The relevant text is at Section 15, paragraph 7, sub-paragraph (b):
‘where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded.’
In the absence of reform through complete Section 15 abolition, this nonsensical part of the Act must be removed from the legislation at the earliest opportunity.
Solution: declarations by landowners
One obvious partial remedy to the great village green swindle has already been wrongly dropped from legislation.
In Common Land Policy Statement 2002, about the then proposed legislation concerning town and village greens which became the Commons Act 2006, the government gave the following promise at Paragraph 45:
‘There would, however, be a similar provision to that under Section 31 of the Highways Act 1980 concerning rights of way, so that a land owner could give [public] notice that it is not his intention that the land should become a town or village green.’
At the committee stage of the Commons Bill, Philip Dunne MP pointed to the above ready-made solution, which he feared might be dropped. Prophetically as it turns out, he then said:
‘If the landowner does not wish their land to be registered, it will in effect be confiscated… unless we pass the amendments, and I am not sure it is the Bill’s intention to disenfranchise that kind of owner in such circumstances.’
The commitment given in the Common Land Policy Statement 2002 was not fulfilled. The idea of declarations by landowners was dropped from the Bill. If the promise had been kept, this would have given certainty to the public, to the property owner, and to all local authorities in respect of any property.
All honest people would have known where they stood. Many spurious ‘village green’ claims would be rejected. The great village green swindle could not have developed.
Remedies: Improve and Streamline the Applications Process
Solution: make a fee payable
There is no fee payable by anyone sending in a village green application, or using the common nimby trick of sending in multiple applications over time.
This must be changed as a matter of urgency.
A fee commensurate with the work and costs that are involved should be payable in respect of every application. This is in the obvious, evident interests of fairness, justice and efficiency.
Solution: costs to be borne by the responsible person
Introduce a power for registration authorities to seek costs incurred in the event of weak, vexatious or frivolous applications.
Solution: streamline the sifting of applications
Ensure that weak and/or clearly vexatious ‘village green’ claims are sifted out by the registration authority at an early stage.
Solution: end the tactic of multiple applications
One of the common nimby tactics that has grown up during the great village green swindle is that of using multiple applications.
The multiple applications cover either the same property, or different parts of the same property, or different time-scales in relation to some of the property, and are sent in after time has elapsed since the previous application.
This ploy is intended to cause:
· delay in the processing of a claim that the property is so-called ‘town or village green’;
· expense and trouble for the owner of the property or for any potential developer;
· confusion and additional work among the staff at the registration authority, who have to deal with all of the applications.
A practical solution to multiple applications is already available to competent, well-managed registration authorities: Res Judicata.
Res Judicata is a fundamental doctrine applying to all legal and quasi-legal proceedings. It centres on the principle that there must be an end to litigation. Res Judicata translates as ‘a matter which has been adjudicated on’.
This legal principle seems to be badly overlooked in some local authorities where spurious modern ‘village green’ applications are concerned. So there should also be a specific statutory power in law for registration authorities to refuse repeated applications, so that applicants can no longer continually re-apply to register the same land.
Solution: rectify and harmonise the decision-making process
Urgently put an end to the current ad-hoc and chaotic method of ‘non-statutory public inquiries’ where town and village green applications are concerned.
If initial agreement cannot be reached over whether the property is a village green or not, then any public inquiry into the matter should be held under the Tribunals, Courts and Enforcement Act 2007.
This would restore the necessary seriousness and formality which was intended by the original 1965 Act which established the Commons Commissioners.
Since high-value property is often at stake in these matters, whether privately-owned or publicly owned, and currently no compensation is available to the person who loses their property, it is obvious that all evidence should be given under oath, with the appropriate warnings given before the witness speaks.