It is a comfort to many people that town or village greens are immune from being built upon. However, as a High Court case showed, land may be stripped of that protected status if appropriate replacement plots are offered by developers.
The case concerned a 33,000-square-metre patch of land that was registered as part of a village green in 2008 on the basis that it had, for well over 20 years, been used for lawful sports and pastimes by a significant number of a specific neighbourhood’s inhabitants.
With a view to nature conservation, it was carefully maintained and improved by local volunteers for a decade thereafter until its owner, a housing developer, purported to withdraw public access for that purpose. In seeking the patch’s de-registration as a village green, the developer offered in exchange an adjoining 36,000-square-metre replacement plot.
In upholding the developer’s application, a planning inspector noted the strength of understandable local opposition to the proposal. He acknowledged that the replacement plot was further away from some neighbourhood homes and was different in character from the disputed patch. Having visited the latter, however, he noted that it had, since 2018, become somewhat overgrown.
Describing the patch as arguably the least attractive part of the overall village green, he found that the replacement plot would be more accessible for some people and would offer the potential for a wider range of activities. Noting the developer’s landscape improvement proposals, he found that the land exchange was unlikely to have any adverse effect with regard to nature conservation.
Dismissing a local campaigner’s challenge to that outcome, the Court found no flaw in the inspector’s conclusion that the exchange was in the public interest. He rightly took a broad approach in treating the affected neighbourhood as comprising all local inhabitants. There was no hierarchy of importance when it came to considering the interests of residents of the specific neighbourhood and those of other inhabitants who lived further afield.
The inspector faithfully recorded the objectors’ contention that they did not need the developer’s permission to recommence maintenance and improvement work on the patch. He had express regard to that as a potential fall-back position. He was entitled to place weight on the fact that little such work had been carried out since 2018 and was fully alive to the nature conservation issues.
The Court acknowledged that the enjoyment and study of nature bring important public benefits. However, it was only one of several factors that the inspector had to consider. Whether or not nature conservation could itself be viewed as a lawful sport or pastime for registration purposes, it could not be prioritised over other activities commonly enjoyed on village greens.