The Clinic at Medway has been asked to assist clients who would like to establish a
particular piece of land as village green. The case involves the transfer of privately owned land to public use.

The land in question has been used as a communal garden for a period exceeding 20 years and the landowners have never objected to nor put any conditions on the use of the land. The following criteria would apply when dealing with such cases.

Application for a Village
Green
The legal basis for an application for a village green comes from Section 15 of the Commons Act 2006. Subsection 2(a) states that ‘any significant number of inhabitants’ who ‘have indulged as of right in lawful sports…for a period of at least 20 years’ are capable of applying. The statute also requires them to have used the land ‘as of right’. This means the use of the land must have been done openly, without force, and without permission as set out in the case of R v Oxfordshire
County Council and Others (2000).

Subsection 2(b) requires the applicants to ‘continue’ to use the land up to the time of application. The 2006 Act, however, also provides for a period of grace of two years in the event that the use ‘as of right’ had been ended by the landowner. This
means that as residents, our clients will have a period of two years to apply for registration even if the landowner decides to stop their use of the land now.

The application is done by completing form 44 as required by Section 15 of the 2006 Act. If the application is accepted without objection, then the land will be protected by Section 12 invitees. Section 1 of the 1984 Act extends this liability to include
trespassers and people who may not necessarily have been invited to the premises.

Taking Adverse Possession
of the Land
According to Section 15 of the Limitation Act 1980, a person may apply to be registered as proprietor of any estate if he/she has been in possession of it for 12 years, although this was amended to 10 years by the Land Registration Act 2002.

The law in England and Wales provides adverse possession as a mechanism for taking land from people who don’t use it by those who make use of it. For this reason, a landowner who has not actively used his land for a period of at least of the Inclosure Act 1857. This Act prohibits actions which would interrupt the recreational use of the newly declared Village Green. Section 29 of the Commons Act 1876 also prohibits the erection of buildings on, encroachment on and interference with the Village Green.

However, registration of land as a village green may pose two main problems to landowners. The first is brought about by the two Occupiers Liability Acts 1957 and 1984. The 1957 Act imposes a duty of care on occupiers of land to their visitors and
ten years can have his land adversely possessed by someone else who has used it for the same period of time.
The above options are just two of the legal bases upon which private land
can be converted to communal use. The legislation highlights that the law
can be used to advance social interests and promote the general well-being of otherwise disadvantaged people in society and the Kent Law Clinic is a good
medium to help to facilitate such ideals.
Walker Syachalinga was the Medway Law Clinic Chair 2008-2009