Assets of Community Value: the new village green for protection of informal open spaces? – Part 2

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In this second part of my mini-series of articles reflecting on ACVs, I compare the legal tests required for village greens and ACV. Previously, I looked at whether an informal open space can be classed as an ACV. Finally, I will be looking ahead to the future battle between ACVs and development in the next and final instalment.

Legal tests for village greens vs ACVs – What are the differences?

There are some significant differences between the legal requirements to apply and register an informal open space as a village green compared to the looser and easier requirements for a listing of an ACV.  

These are summarised below:

 Village GreensACVs

Community use ceases (such as by fencing)

  • Strict one year period to submit application from the date the use ceases (or is challenged) – s.15(3) Commons Act 2006.
  • No strictly  defined period to apply for registration;
  • The test is whether there has been an actual use  in the 'recent past' which is a judgement decision of of the determining authority;
  • Decisions of the First-tier Tribunal, primarily relating to pubs, indicate that 'recent past' can be more than one year, dependent on the facts of each case.
Period of past community use
  • Past community use must have occurred for a continuous period of 20 years – s15(2) Commons Act 2006.
  • No strict time period of past community use;
  • Decisions of the First-tier Tribunal have indicated that past community use need not be 'substantial' or 'continuous' use within the recent past but that trivial or very temporary use will be disregarded as 'ancillary' to a main use.

Intentions and actions of the landowner ('as of right vs 'by right')

  • The community use must be 'as of right' in order for successful registration;
  • 'As of right' means public use without the owners' permission and/or without overt notice of an owners intention the land is private (e.g. private signs, oral warnings);
  • Also, Landowner statements per s15A of the Commons Act 2006 will prevent regsitration.
  • The intentions and actions of landowners are not relevant to the assessment of past and current 'actual' community use;
  • The intentions and actions of the landowner will though be a material consideration in the assessment of whether such past actual use, if ceased, will realistically recommence in the next five years.
  • As seen in the Banner Homes case, even fencing was not a preclusion to the filed being listed as an ACV.
  • Certain actions under the Planning Act can trigger a period of protection preventing new applications – s15A of the Commons Act 2006.
  • Examples include applications for planning permission on the land and draft development plan documents identifying the land for potential development.
  • No such periods of protection apply for ACVs listing applications;
  • However, the grant of planning or housing allocation of the land in draft development plans may affect its prospects of being determined that the community use, if it has ceased, would realistically re-occur within the next five years.