In response to Cllr Vickery-Jones' comments in the press recently, here's what we sent to Mark Ellender (Head of CCC Legal & Democratic Services) on 10th January 2010. It explains how Village Green status would not prevent the Council from carrying out maintenance work on The Downs. At all.
Thank you for your email of 18th December 2009. I am pleased that CCC has finally sent informed staff to the site to have a look at the land in question. I do not propose to rehearse here all the issues about where specifically the site is located – we can do that another time and I will happily send you all the relevant documentation – but given your comments about drainage, it is clear that we are describing the same site. In this note I want to pursue the issue that is of primary importance to a very significant number of local residents, tax payers and voters – registering The Downs as a village green.
I am delighted that CCC has no objection in principle to the idea of registering The Downs as a village green. You say that you must resist the registration of The Downs as a village green simply because you need to carry out engineering works “without requiring consent from the Secretary of State every time”. The campaign team accepts absolutely that CCC needs to carry out maintenance work to the system of drains that stabilise the land. We accept too that, in the case of a landslip, CCC would need to be able to undertake repair and stabilising work swiftly. However, your assumption that CCC would only be able to undertake this work by obtaining permission from the Secretary of State is wrong. I think your colleagues may have misinformed you.
Since receiving your email I have had three conversations with Defra (two over the phone and one by email) as well as a conversation with the village green expert at the Open Spaces Society and one with the village green registration team at KCC. I am delighted to tell you that the situation is not as you think it is. I think your colleagues may be confusing the steps necessary for work on a village green with those necessary for work on common land. The two are quite different.
The Open Spaces Society was categorical in its advice that the kind of work envisaged (possible fencing off of part of the village green while stabilising the land and protecting it) would not leave the council open to any risk of prosecution, nor would the council need to involve the Secretary of State before taking action. Defra is also clear that no special permission is needed for any work on a village green as long as that work contravenes neither Section 12 of the Inclosure Act 1857 nor Section 29 of the Commons Act 1876.
The Planning Inspectorate also says in its guidance sheet 2b that “…there is generally no requirement under the legislation relating to commons and greens to obtain consent to carry out works on a green which are not in contravention [of] sections 12 and 29.”
So, as long as the work does not contravene these two acts, no permission is needed to undertake it. I will say more about each of these two acts below.
The Law
As I have mentioned above, registered town and village greens are protected by the following two statutes:
- Section 12 of the Inclosure Act 1857
- Section 29 of the Commons Act 1876.
Section 12 of the Inclosure Act 1857 says:
“If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof before two justices, upon the information of any churchwarden or overseer of the parish in which such town or village green or land is situate, or of the person in whom the soil of such town or village green or land may be vested, forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding [level 1 on the standard scale];…”
Section 29 of the Commons Act 1876 says:
“An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section twelve of the Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned.”
Practical implications of these two statutes for CCC
If the intended work on a village green contravenes neither section 12 of the Inclosure Act 1857 nor section 29 of the Commons Act 1876 then there is no need for CCC to obtain any special permission before undertaking the work. That is to say that no permission would be needed simply because the land is a town or village green. Of course, all the normal rules regarding planning permission would still apply, but we are talking in the case of The Downs about maintenance and repair work rather than any new build, so I will leave that to one side.
Contrary to the advice that you have been given, there is no process for getting approval for works from Defra in the case of village greens. As Defra pointed out to me, “Neither the Secretary of State, Defra, nor any other body is able to give consent for illegal works to be undertaken on a town or village green.” So, either the intended works are legal, or they are illegal and Defra may not give permission for them. Defra’s view (and I quote) is that:
“Arguably works to improve drainage or to ensure the stability of the land could be considered to be for the better enjoyment of the green and therefore might not contravene either of these Acts….in Defra’s view, when considering whether or not any given development or action contravenes either or both of the above mentioned statutes a court is likely to be concerned with whether material harm has been caused to a green and whether there has been interference with the public’s recreational enjoyment. Other issues that might be relevant include the proportion of a green affected by the development or activity and the duration of the interference.* Whether or not either the 1857 Act or the 1876 Act have been contravened will ultimately be dependent upon the precise nature of the works which have been undertaken on the green.”
[* For clarity, Defra is distinguishing between temporary works, however long, to achieve a legal aim and permanent fencing off of the land to deny access.]
I shall examine below what risk, if any, each of these two strands of statutory protection for village greens present to CCC if the council were to undertake the kind of maintenance or repair work that we are discussing here.
Assessing the risk presented by the 1857 Inclosure Act
It is a criminal offence to undertake on a village green any works which contravene the 1857 Act. Looking at Section 12 above, it is clear that CCC will not be damaging fences (there are none), nor driving animals onto the green, nor injuring the green. The only possible way in which CCC might be interpreted as contravening the 1857 statute is the “interruption of the use or enjoyment [of the green] as a place for exercise and recreation…”
The Act is specific about who can register a complaint against someone who interrupts the use of a village green. The relevant categories today are the parish council (there is none, but in its place would be the district council which is CCC) or the owner (CCC). So, only CCC could take a case against CCC to court. It is clear from this that the risk represented by the 1857 Act is entirely manageable by CCC.
Even if CCC did take CCC to the magistrate’s court for interrupting the use of part of the village green and win, CCC would be liable to a fine not exceeding level 1 on the standard scale. Today that represents £200.
Assessing the risk presented by the 1876 Commons Act
Works undertaken on a village green in breach of the 1876 Act will be deemed to be a public nuisance unless they are undertaken “with a view to the better enjoyment of such town or village green or recreation ground”. In undertaking maintenance work that protects The Downs and ensures its future existence, CCC would clearly be undertaking work “with a view to the better enjoyment” of the village green. In the case of a landslip where CCC would need to stabilise the land and make it safe, that work is demonstrably “with a view to the better enjoyment” of the village green as, were the work not to be done, part of the village green would be unusable. No consent is needed from Defra or anybody else for works of this kind as they do not contravene the statute. If the work that CCC wishes to undertake is maintenance work or work that ensures the long term stability – and therefore usability – of the land, there is no risk to CCC in undertaking it nor is there any need to seek approval to do so.
Managing Town and Village Greens in Local Authority Ownership
Defra’s guidance is that greens in local authority ownership are generally managed by the authority under the Open Spaces Act 1906 or by a scheme of regulation under the Commons Act 1899. Only if the village green were subject to a scheme of management under the Commons Act 1899 would section 38 of the Commons Act 2006 apply. Section 38 is the section that talks about the prohibition on works without consent and is, I suspect, the section that is worrying you and/or your colleagues. For the avoidance of doubt, I repeat that Section 38 of the 2006 Act does not apply to a village green that is not under such a scheme of management. My authorities here are Defra, the Open Spaces Society and The Planning Inspectorate. You may like to read for yourself “Common Land Guidance Sheet 2b” which spells this out clearly.
CCC could opt to have The Downs as a village green managed under a scheme of management under the Commons Act 1899. If the council were to do this, it could give itself permission in advance to undertake certain specified kinds of work without having to apply for permission from the Secretary of State.
The current model scheme of management gives examples of the kind of work for which local authorities can give themselves permission in advance by listing their village green in this way. They include:
- Protecting and improving the land – e.g. drainage, raising, levelling or other work
- Preventing accidents – e.g. fencing any quarry, pit, pond, stream or other like place
- Preserving the turf, shrubs, trees, plants and grass.
This would seem to cover everything that CCC would need to do in terms of maintaining and improving the drainage system; keeping the land stable; and reacting in the case of a landslip to make the green safe.
Conclusion
CCC has two options here. It can either take the view (as those experts to whom I have spoken have done) that there is no risk to CCC by doing the kind of maintenance and stability work that we are discussing. Either – in the case of the 1857 Act – only CCC could take CCC to court or – in the case of the 1876 Act – the work would be demonstrably for the enhancement of the green and so would not in any way contravene that Act.
Alternatively, CCC can take the view that there is a risk, however tiny, represented by one of these Acts. It can then register The Downs as a village green to be managed under a scheme of management under the Commons Act 1899. This would give CCC explicit advance permission to undertake all the necessary works – drainage; fencing; raising; levelling – without having to apply to anyone for permission to do so.
Either way, your concerns, or those of your colleagues, are groundless. The practical obstacles you describe about having to seek Secretary of State approval every time CCC needs to carry out the kind of work envisaged simply do not exist. This concern has been dealt with by seeking advice direct from Defra, the Open Spaces Society and KCC, as well as from other expert sources such as The Planning Inspectorate who make guidance information for landowners freely available on the internet. Given that, and given that CCC officers and councillors have said on a number of occasions that CCC has absolutely no objection in principle to voluntarily registering The Downs as a village green, I do hope we can now make speedy progress towards doing just that. After all, CCC is there to represent the local people, not to pursue its own private agenda in the face of local opposition, and local people vigorously support the village green application.
CCC, 
