Village Greens in Pirton: Definition, Protection, and Usage, Lecture notes of Law

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Pirton Parish Council May 2020

VILLAGE GREENS

Pirton Parish Council

Adopted: 12 June 2020 Doc

Chairman: Jill Rogers

Re-Assessed (date) Signed (Chairman)

Pirton Parish Council

Village Greens

Policy & Procedures

1. plan
2. History and background

The Village Greens are an integral part of a village community and, as such, should provide its residents with a focal point around which they can live a peaceful and friendly existence. Pirton has four small areas throughout the village, two of which have been designated village greens and were registered in May 1986 and designated VG98 (Little Green) and VG99 (Great Green) on the DEFRA plan. Our third green, Middle Green, has recently been registered with reference VGR058. It consists of Coleman’s Close recreation field, orchard and children’s play area. The fourth area, where the village sign is erected, is known as Chipping Green or Little Green at Bury End and is registered as common land.

Both Great Green and Little Green, under the Commons Registration Act 1965 were registered by Pirton Parish Council as Greens on 12th^ May 1986. From the Commons Registration documents (See appendix 3) we can see that on 23rd^ January 1964, Mr John H Hanscombe conveyed to the Parish Council all his estate and interest in (inter alia) the unit of land and all waste lands of the Manor of Pirton, which it was recited in the Conveyance had been conveyed to him by a Deed dated 14 October

1959. Pirton Parish Council became the freeholder.

Middle Green in Coleman’s Close, at OS Grid Reference TL 14716 31861, is the most recent housing development where significant open space has been incorporated in keeping with village character. Together with the Recreation Ground, Middle Green provides for the play space needs of the village.

This publication is designed to improve the enjoyment of these unique and special places, ensuring we all understand how they came to be and how they must be looked after and respected. This is not a legal document, and nothing in it is intended to be given as legal opinion. All the references are drawn from primary legislation or delegated legislation in the form of regulations made by lawful authorities, or to published guidance issued by specialists in the field. Practical directions issued by Pirton Parish Council are made within the powers given to it in law, and as the owner of the lands on behalf of the wider community.

3. Definition of Village Greens

Village Greens are defined in the Commons Registration Act, 1965 (s.22) as amended by The Countryside and Rights of Way Act, 2000 (s.98) as: “land …on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either (a) continue to do so, or (b) have ceased to do so for not more than such period as may be prescribed…”. Village Greens are protected by the Inclosure Act, 1857 (s.12) and the Commons Act, 1876 (s.29). Section 12 makes it a criminal offence to do any act which injures a Green or interrupts its use as a place for exercise and recreation. Section 29 also makes it an offence to permanently encroach upon or ‘inclose’ a Green, or to build upon or disturb the soil of a Green otherwise than with a view to its better enjoyment. It is not possible to give consent to do any works that contravene this legislation, as to give such approval would be condoning a criminal offence. In 1897, the Council re-confirmed by-laws first made the previous year for the control and management of the Greens that further emphasised the protected nature of these special places. These byelaws continue in force today, as confirmed in 1956.

4. Legal changes affecting future registration of Village Greens in Pirton

The Growth and Infrastructure Act 2013 has made a number of significant changes to the law on registering new town and village greens under the Commons Act 2006.

Section 16 of the 2013 Act inserted new Section 15C and Schedule 1A into the 2006 Act, which exclude the right to apply for the registration of land in England as a town or village green where a trigger event has occurred in relation to the land. The right to apply for registration of the land as a green remains excluded unless and until a terminating event occurs in relation to the land. Trigger and terminating events are set out in Schedule 1A to the 2006 Act and broadly relate to whether land is identified for potential development in the planning system.

is no public right of vehicle access. These rights were also established before Great Green became a registered Green. Over the years, loose surfacing has been laid down by some property owners over the surface of their track. As these tracks are for the private benefit of the householders only, it is not for the Parish Council to use public funds to maintain the tracks. It is the responsibility of these lawful users of the tracks to ensure that anyone from the neighbourhood can enjoy Great Green, which must mean maintaining the tracks in at least a condition that is fit for pedestrians to walk on. Property owners are able to request an easement from the council at a small fee, which will be lodged at the Land Registry, confirming their right to access their property over Great Green. This registered right is helpful when selling their property. As custodians on behalf of the community the Parish Council must ensure that the Greens are protected against encroachment, damage, and uses other than those consistent with its normal enjoyment.

7. Lawful use

Whilst not exhaustive, the following is a list of lawful and prohibited uses of village greens. Generally. lawful uses would include: -

1. Walking across it with or without a dog.
2. Playing sports and games.
3. Use of existing paths for access/egress on foot.
4. Use of existing prescriptive rights of access that cross Great Green with a vehicle.

Prohibited uses include: -

1. Any physical alterations to The Greens.
2. Fencing of The Greens or otherwise making them inaccessible to the public.
3. Wilful damage (i.e. when a person was aware of the risk of damage) e.g. by vehicles, bicycles or horses; or the storage/siting of building materials or skips unless with the express written permission of the Parish Council which will not be given if there is an alternative within the adjacent property boundary.
4. Planting of trees except by the Parish Council.
5. The pruning or cutting down of trees except by the Parish Council.
6. The building or introduction of any structure (this includes even small things such as plant pots, steps, bollards, posts, marker stones or similar) except by the Parish Council.
7. The driving of a vehicle across grassed areas (see Common Questions and Answers).
8. Parking of a vehicle on the grass or tracks unless with permission from the Parish Council (see Common Questions and Answers).
9. Camping or caravanning (see Common Questions and Answers).

A degree of common sense must prevail in interpreting the possibilities for the Greens’ use. However, the overriding factor must be protection against damage, maintaining access and enjoyment for all in the neighbourhood and guarding against changes of use.

The Parish Council will be pleased to advise anyone on use of the Greens. You should make contact with the Parish Council through its Clerk or by contacting any of the Councillors.

8. Enforcement

Where one of the Greens has been unlawfully used or damaged the Parish Council can take actions available to it in law to both seek remedy of the damage or a cessation of the unlawful use. Those responsible will be expected to pay all subsequent costs in relation to the Green’s repair or reinstatement, and works will be subject to timescales required by the Parish Council. Should the Council have to commission its own works in relation to repairs or reinstatement, all costs incurred will be charged to those responsible for the damage.

9. Public Rights of Way

Not to be confused with rights of access over the Greens generally (see Section 9 below), public rights of way are those footpaths, bridleways and bye-ways that exist over private land for the use of everyone. There is a footpath running alongside Middle Green. Walkers only have permitted rights to use this path.

10. Rights of access to properties and land

There is a distinction here between old and new rights. In the past, where owners already had the right (i.e. there had been an access way used by vehicles for many years), access to owners selling their properties was assumed. This was not a legal right as such rights - condoning the criminal offence of taking vehicles on to Greens – could not be created. It was just consent to the use, so that Pirton Parish Council could not take action in future against the owner. It goes without saying that any access way should have been in use and already constructed. However, now, where there is no long-term use there is not even the expectation that a right of access could exist for vehicular use and it cannot be created by Pirton Parish Council. However, the Parish Council can grant an easement to allow access. Use on foot only is a different matter- this use is already part of the public right to use the Greens and so does not need to be expressly created. Creating a surface for foot use only - e.g. to stop mud being carried into a house, could be contemplated if the Parish Council was satisfied that there was no encroachment, i.e. no interference with the right of the public to use the surface as part of the Greens or a spoiling of their enjoyment. There could be no exclusion of the public from this path and Pirton Parish Council would, in effect, only be giving licence to use the path subject to it being properly maintained by those benefitting from it.

14. Protection of trees

All trees on the Greens are in the ownership of Pirton Parish Council. They must not be pruned or cut down without obtaining permission from Pirton Parish Council. The Parish Council will be consulted in that process. The Parish Council has the right to make decisions on the moving and replanting of trees and other plants on the Greens, although it will seek to consult with the Village and others as necessary.

15. Alteration or Change of Use

Any requests to alter or make new use of the Greens should first be referred to the Parish Council. Pirton Parish Council has limited rights and may only sanction minor alterations that do not undermine the basic rule that no damage must be done, and that any work must be for ‘the better enjoyment’ of users. The Commons Act, 2006 (s.16) sets out how changes of use and significant alterations are managed, with applications submitted to the Secretary of State (through the Planning Inspectorate). This may only be done by the Parish Council or Local Authority To prevent the overall loss of Village Greens space these circumstances will usually include a suitably sized replacement piece of land being exchanged for the intended area of Village Greens concerned, for example to give access to a new development.

Further guidance is available online at http://www.planningportal.gov.uk/planning/countryside/commonland/forms.

16. Outcome

Village Greens are part of our English heritage and should be protected and enjoyed by everyone as much as possible, and especially by the residents of the village they are connected with. We should all be proud of our Village Greens and feel honoured to live and be a part of a community that has the good fortune to have them.

17. Appendices

Appendix 1. Maps of the Village Greens

Appendix 2. Common Questions and Answers

Question 1: Can vehicles drive over or park on Village Greens? The law in this area is complex, but generally, it should be avoided. DEFRA’s answer: Section 34 of the Road Traffic Act 1988 makes it a criminal offence to drive over, or park on land (including a Green) not forming part of a road without lawful authority to do so. In this context ‘lawful authority’ includes either the lawful permission of the owner of the land or a private vehicular right. Those who have lawful permission, a private right or some other form of lawful authority may drive over, or park on, a Green without committing an offence under the 1988 Act. Furthermore, it is not an offence under the 1988 Act to drive on a Green within 15 yards of a public road solely for the purposes of parking on the Greens. However, irrespective of whether an offence has been committed under the 1988 Act, driving over or parking on a Green may still be an offence under section 12 of the 1857 Act or section 29 of the 1876 Act. For example, if a court adopted a strict interpretation of section 12 of the 1857 Act, any interruption of the use or enjoyment of a Green would be an offence under that provision. However, in DEFRA’s view, occasional driving of private vehicles over a Green in exercise of a private right of way, for the purposes of parking on private land beyond the boundary of the Greens, is unlikely to be viewed by a court as giving rise to an offence under the 1857 and 1876 Acts, if the interference with recreational enjoyment is very brief. In DEFRA’s view, a court is more likely to find that vehicular use contravenes section 12 or section 29:

1. if the use is very frequent
2. if the use is by very large or slow-moving vehicles
3. if the vehicle is parked on the Greens; or
4. if damage is caused to the Greens by the vehicular use

A court would need to consider each case on its merits in order to decide whether the vehicular use was an offence, but in one case decided in the Court of Appeal, it was observed that there was ‘no sufficient reason to regard the existence and use of [an access track] as injuring the Greens or interrupting its use or enjoyment by others’. Further information regarding vehicular access over Greens can be found in Defra’s non statutory guidance note entitled ‘Vehicular access across Common Land and Town or Village Greens’ at www.defra.gov.uk or on the parish website. If in doubt please contact the Parish Council.

Question 2: Can you camp or caravan on a Village Greens? Open Green Spaces answer: Probably not - legally it has been generally assumed that camping is not a recreational pastime and that someone putting tents up or placing a caravan on a Village Greens may stop other people from enjoying their right to recreation and exercise. Section 29 of the 1876 Act states that any ‘enclosure....or erection thereon’, e.g. a tent or caravan, is deemed to be ‘a public nuisance’ i.e. it is an offence under the Act. A caravan would be deemed to be interfering with the rights (recreational) of others and would probably damage the surface – both offences under the 1876 Act. The owner also has powers in common law to remove a trespasser. Where land is occupied by travellers the owner will need to pursue possession proceedings.

Question 3: Can you graze animals on a Village Greens? Open Green Spaces answer: The owner of the land or someone with rights to graze stock can do so, provided they do not stop people enjoying exercise or recreation. This might mean the Greens, or part of it, is grazed for part of the year and people are put off use for that time. People who are likely to want to use that area in this time must be consulted and decisions made openly and widely known. Problems might follow if you needed to fence part or all of the Greens to keep animals from straying - this would fall foul of s29 of the 1876 Act. Those with ‘rights of common’ to graze livestock are listed on the Register, a copy of which is on the parish website.