Flying golf balls defeat village green

Town or village green applications (TVGs) arise from a piece of 1960s legislation which allows local inhabitants to apply for registration of land as a TVG where they can show that they have used it for more than 20 years "as of right" and without permission for sports and pastimes.

Registration authorities started receiving more and more applications in the late 1980s, made by groups of local residents keen to prevent further development in their localities. If a TVG is registered, the landowner cannot do anything to interfere with the use of the land for sports and pastimes. In other words, no development can take place.

If an application for registration of a TVG is made, the authority has to decide whether to take the risk of determining the application on the papers, or whether to appoint an inspector to hear evidence at a non-statutory inquiry together with all the administrative support required. An authority cannot recover any inquiry costs, but if it decides the application without an inquiry, it runs the risk of a judicial review from the disgruntled party. Registration authorities are in a "heads you win, tails we lose" position!

A case decided by the High Court in July 2008 considered a claim for judicial review of a decision made by Redcar & Cleveland Borough Council to reject an application for registration as a TVG. The case concerned land used (until 2002) as a golf course and also by the local inhabitants for recreational purposes such as bird watching. The public had been warned of the dangers of flying golf balls and had deferred to the golfing use. The court found that the locals had shown "overwhelming deference" to the golfers and therefore had not sufficiently shown use "as of right", one of the essential criteria for a successful application for registration.

However, leave was given to appeal to the Court of Appeal on the basis of the new concept of deference. We await the result with interest. Wragge & Co has dealt with several TVG inquiries and advised numerous clients with TVG issues.