The “by right” defence in village green registration

Abstract

Purpose – This paper aims to examine the recent jurisprudence of the Supreme Court concerning the registration of land as a town or village green (TVG). This area of law has proved contentious over the past decade and shows no sign of relenting. Most recently, in April 2014, the Supreme Court was asked to determine whether use that is pursuant to a statutory right could be qualifying use for the purposes of village green registration, which requires 20 years use “as of right”. Design/methodology/approach – The paper starts by summarising the law relating to the registration of land as a TVG and identifies the current problem that the courts are grappling with, namely the “by right” defence. After analysing the two leading authorities in relation to this point, the paper makes a judgment on the operation and conceptual underpinning of the “by right” defence. Findings – The paper concludes that the “by right” defence in the context of village green registration is a functioning concept that prevents the registration of land as a town and village green whenever the use relied upon is indulged in pursuant to a statutory right. Furthermore, the defence should also be construed with the pre-existing test for use “as of right” rather than being recognised as an additional limb to this test. Originality/value – The value of this paper is that it seeks to clarify an area of planning and property law that is fraught with conceptual uncertainty, and seeks to re-align the law of town and village greens with its prescriptive underpinnings.