30th August 2018
Generally speaking, there is no right for members of a community to enter privately-owned land for the purposes of maintenance and/or community use. That said, there are situations where steps can be taken to force a landowner’s hand, or where rights can be earned or designated that would allow members of a community to step in.
Where a landowner is failing to maintain their land in such a way that its condition is adversely affecting the amenity of an area, the Town and Country Planning Act allows for a local planning authority (LPA) to take steps requiring the land to be cleaned up. This is done through the service of a section 215 notice, where the LPA serves notice on the owner and any occupier of the land, specifying the steps to be taken and the period within which those steps must occur. There is a right of appeal to the magistrates’ court but once the notice takes effect, it is an offence to fail to comply with the notice within the period specified in it. If a landowner does fail to comply, the LPA can itself enter the land and take those steps, and recover its costs of doing so from the owner.
Clearly, this process would see land maintained so that it is not detrimental to the wider area. What it does not do is create a right to access or otherwise use any land going forward. In certain cases it may be possible to look to register land as a village green, which have developed as areas of land where local people indulge in “lawful sports and pastimes”. Where land has been used by local people for lawful sports and pastimes ‘as of right’ (i.e. without permission, force or secrecy) for at least 20 years, anyone can apply under section 15(1) of the Commons Act 2006 to register land as a village green. The owner of land registered as a village green cannot do anything that interferes with the lawful recreational activities of the local inhabitants. However, the law makes no provision regarding the maintenance of privately-owned village greens.
Alternatively, under the Assets of Community Value (ACV) provisions, local communities have a right to identify a land that they believe to be of importance to their community’s social well-being. The aim is that if the asset comes up for sale, they will be given a fair chance to make a bid to buy it on the open market. An ACV is land that the local authority considers to have community value within the parameters set in the legislation. Importantly, this would not confer a right to use or maintain the land; all it does is give a community group a right to bid for the land if it comes up for sale.
It is also worth noting that there are ways in which the right to apply to designate land either as a village green or ACV can be excluded. These will protect landowners even where lawful sports and pastimes occur as of right, or the land is important to the well-being of a community. In such cases, or as an alternative, it is possible for land to be protected the planning system.
The ‘Local Green Space’ designation allows local communities to protect ‘green’ spaces of local importance without the need to meet any strict statutory criteria. Sites may be designated for a variety of reasons, including their setting, local importance or nature conservation benefits. Local communities are able to identify such green spaces through local or neighbourhood plans. Following designation the land will receive protection equivalent to green belt, ruling out new development other than in very special circumstances. As this is done through the local planning process, consultation and engagement will ensure that any new designation will not undermine investment in homes, jobs and other essential services.
For more information about this article, or to discuss any other planning-related matters, please contact Fred Quartermain or the Planning team.