How can the removal of village green status be justified?

It is a busy time in the law of town and village greens.  The Court of Appeal has recently handed down judgment on whether to restore the village green status of two village greens, one in Huddersfield and the other in Weymouth.

In the Huddersfield case, the lower court had concluded that the green was incorrectly registered as the registration had been based on public use from two localities (Edgerton and Birkby), instead of the one locality required by the Commons Registration Act 1965.  The Court of Appeal disagreed and held that such a stringent definition should not have been applied.  A key factor was that the 12 year delay in seeking rectification of the commons register was so excessive that it would be unjust to now remove the statutory protection enjoyed by the registered green.  The full case report for the Huddersfield case can be found at http://www.bailii.org/cgi-bin/markup.cgi%20doc=/ew/cases/EWCA/Civ/2012/262.html&query=adamson+and+v+and+paddico&method=boolean

In the Weymouth case, the lower court revisited the question of public use "as of right", meaning without force, secrecy or permission.  At the time of registration the land owners had put up signs and fences to prevent members of the public from using the land, which had been repeatedly vandalised.  The lower court concluded public use had not therefore been "as of right" and the Court of Appeal agreed that the green should remain deregistered.  Interestingly, the argument that many residents had bought houses in the area overlooking the green, believing it to be protected, was not relevant as the court felt their position would be protected by planning policies.  The full case report for the Weymouth case can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/250.html&query=gill+and+taylor+and+v+and+betterment&method=boolean

Both decisions focused on whether it would be "unjust" to remove village green status, which is pertinent given DEFRA's proposed changes to the current regime that will make it harder to register village greens, and easier to achieve deregistration of existing greens.

Some interesting newspaper articles on these cases can be found at:

http://www.dorsetecho.co.uk/news/localnews/9578615.Campaigners_lose_town_green_fight_over_Markham_and_Little_Francis/

http://www.examiner.co.uk/news/local-west-yorkshire-news/2012/02/08/retired-teacher-jonathan-adamson-takes-clayton-fields-fight-to-high-court-86081-30286052/

http://www.thefreelibrary.com/We've+won+back+our+Fields%3b+Clayton+action+group+victory.-a0282398236

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2011/1606.html&query=paddico+and+limited+and+v+and+kirklees&method=boolean

by Rebecca Nash, Solicitor