What Does the Law Say?
Under the Commons Act 2006, an application can be made to register land as a town or village green if it can be shown that a significant number of the inhabitants of a locality, or a neighbourhood within a locality, have used an area of land 'as of right' (ie without force, secrecy or permission) for a period of at least 20 years for the purposes of sports and pastimes. Anyone can make an application to register a piece of land as a new town or village green.
The playing fields and other undeveloped land that you own are vulnerable by their very nature to such an application.
There are several consequences of land being registered as a town and village green including:
The regime therefore protects the land from development and, as a consequence of this, the town and village green regime is often used as a tactic by those opposed to development.
Why Is the Case Relevant?
In the case of of R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs and another, one of the reasons the Council asserted that the land should not be registered as a town and village green was because it was educational land and therefore could not be used for educational purposes if it was registered as a town and village green.
On appeal, the Court of Appeal upheld the High Court's decision to reject this argument and agreed with the High Court's assessment that the land could still be used for some educational purposes despite it being registered as a town and village green (recreation and open air classes) albeit the educational uses it could be used for were much more limited.
What Does This Mean for Academies?
The case shows that educational land is not immune from being registered as a town and village green. Academies should therefore carefully monitor any historic or regular use of any part of their site by locals.
This could be a concern if you have development plans for land or are considering disposing of land to generate funds to enhance existing facilities, because (as mentioned above) the town and village green applications process is often a ploy used by those opposed to the particular development or disposal.
In addition, this will also be a relevant consideration when undertaking due diligence in the context of bringing new academies within the Trust.
Where land is already owned by academies, schools could employ an active management strategy to manage any such use and try prevent any rights being acquired. Positive action (such as the locking of gates, closing any gaps in fences providing access and putting up signs stating that access is prohibited etc.) can assist in evidencing that the use is not 'as of right'.
We have a dedicated team of property lawyers specialising in advising academies on all types of property issues.