Earliest history of English village greens
The starting point for genuine village greens is 1189. This is English law’s year zero, when Richard I came to the throne. Even were there any putative village greens before this date, they do not matter so far as the law is concerned.
Villages and rural hamlets were the places where most of the population lived in these times.
Since most people know what traditional, real village greens look like, and so instinctively know not to try to disturb them, historical court cases concerning them are relatively rare.
The framework of the relevant law
From 1189, the law in England and Wales has been comprised of two parallel but separate branches. These are Statute Law and Common Law:
· statute law is the law made by parliament, written down and codified;
· common law is the ancient law of this kingdom. Originally unwritten, it is now embodied by the decisions of judicial courts in particular cases.
One ancient branch of common law is local customary law. It is to this that traditional, real village greens owe their existence. This type of law has largely become obsolete and is now very rarely encountered.
The current framework of the law regarding village greens contains elements of both statutory and common law.
The first statutory legislation that mentions village greens was enacted in the Victorian era. Still in force today from this period are Section 12 of the Inclosure Act 1857 and Section 29 of the Commons Act 1876. Among other things, these laws prevent disturbance to the village green.
The industrial revolution meant that homes were needed for workers in the new towns and cities. As an integral part of these new developments, parks were created and laid out for the use of the public. Land was bought, or donated voluntarily by owners, for the purpose.
A group for the promotion of these kinds of beneficial enterprises, The Open Spaces Society, was formed in this era. Under its latter modern leadership it has been extremely left-leaning and has engaged in some very questionable activities. However, during the rapid industrialisation of Victorian times, it played an honest role that benefited most people.
The earliest definition
The original Halsbury’s Laws of England, from 1908, contained the first attempt at a written definition of the English village green:
‘By immemorial custom the inhabitants of the town, village or parish should have acquired the right of playing lawful games thereon and enjoying it for recreation.
‘The nature of the enjoyment is a matter of proof in each case, and the custom must be limited to the inhabitants of the parish, manor or other district for which it is claimed.’
The Royal Commission
In 1958, Parliament was presented with the report of the Royal Commission on Common Land, whose description of the English village green was:
‘ “Village green” - the very words are evocative of great age and tranquillity, of turf as rich in hue as it is trim in a setting untouched by time.’
No formal, official register of the village greens of England existed. The Royal Commission therefore proposed that the ‘once and for all’ registration of all common land and village greens should take place.
The 1965 Act
The Royal Commission report led, in due course, to the enactment of the Commons Registration Act 1965 (’the 1965 Act’). This was to be the first step in regularising genuine, traditional village greens, with a view to formally ensuring their preservation.
In effect, the 1965 Act replaced the old customary law. Among other things, it provided the following new legal procedures:
· a ‘town or village green’ could be formally registered if local rights could be proved over it;
· establishment of the Commons Commissioners, to hear and decide on any disputed cases;
· any land that was registered as a town or village green - if it was claimed by nobody else - could then be vested in an appropriate local authority.
The intentions of the 1965 Act
The proposers of the 1965 Act, along with the establishment of the Commons Commissioners under it, aimed at providing certainty for all concerned.
The new register of all the town and village greens in the country was to be definitive, both positively and negatively:
· registration was conclusive evidence that on that date it was a town or village green, and;
· non-registration was conclusive evidence that it was not.
That should have been the end of the matter.
However a loophole was left in the Commons Registration Act 1965, as finally enacted. And it is noble, well-intentioned legislation that is often most at risk of subsequent exploitation by clever minds.
The history continues at Modern History of Town and Village Greens.