No abstract

The United Kingdom Supreme Court has recently handed down the much anticipated judgment in R (Barkas) v NorthYorkshireCounty Council(“Barkas”).  The case addressed the “by right” defence in village green law and whether use that is pursuant to a statutory right could be use “as of right” for the purposes of village green registration.  The court unanimously ruled that use “by right” could not be considered as use “as of right” and would not be qualifying use for the purposes of registration.  Use will be “by right” when it is pursuant to a statutory right to use the land, and is usually engaged when the land in question is in public ownership.  In reaching this judgment the court overruled the previous authority of R (Beresford) v SunderlandCity Council(“Beresford”).The Supreme Court left many questions unanswered, although the culmination of recent activity in village green law now makes it considerably harder to register new greens.  The inability to protect recreational spaces through village green registration potentially makes this land available for development, thus tipping the balance in favour of the economic aim, at the expense of the social and environmental aims, of sustainable development.

As submitted with part I

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.

Under the property and personhood theory the projection by individuals of their personhood into the physical world gives rise to property claims over tangible objects and natural resources. However, the property and personhood theory is generally used as a justification for private property, and it is not clear whether a community personhood can be extended into the physical world, giving rise to communal claims over natural resources, such as land. The property and personhood theory distinguishes between two types of proprietary claim: fungible and personal. Fungible property refers to property that is held purely instrumentally, whereas personal property is property that is bound up with the holder, and should be protected against competing fungible claims. This two-part article argues that community claims to property can be justified by the property and personhood theory, and that the law should recognize these claims, although it fails to do so. The personal claim should establish a community’s entitlement to a natural resource and prevail over the fungible claim of a private landowner. However, current practice does not prioritise the community claim, because the claim is not universally understood. The dominant voice in property narrative is not that of a cohesive and mutual self-interest group, but rather the self-interested individual. Recent legislative amendments have purported to implement the policy of empowering local communities, in particular by increasing community participation in deciding on the use and allocation of resources. However, these policies have proved little more than a Trojan Horse that have perpetuated the favouring of the private property holder over a community claim.