FOR developers, the words “village green” or “public right of way” often cause great anxiety and confusion. Taking the concept of the town or village green first, its use as a weapon in the armoury of an objector to a development is a relatively recent development.

After the implementation of the Commons Registration Act 1965, there was a period of about 30 years when it was generally believed that no new village greens could be created.

All that changed with the 1999 decision of the House of Lords in R v Oxfordshire County County ex parte Sunningwell Parish Council. Since then, there has been a steady rise in applications to local authorities to register town or village greens.

Objectors use these applications as a means to frustrate development of land since, due to some 19th Century legislation, it is a public nuisance and an offence to interfere with the ground of a village green or with the enjoyment of it by those entitled to use it.

The new Commons Act 2006 has made it easier for applicants to get greens registered and the recent House of Lords decision of Oxfordshire County Council v Oxford City Council & Robinson has further weakened the position of landowners.

There is unlikely to be any respite for developers or landowners, and registration applications to the Commons Registration Authority are sure to increase in future. The Commons Registration Authority in a local area is the unitary authority or the county council.

When an application is disputed, a non statutory public inquiry can be held. The registration authority appoints an inspector – usually a specialist barrister – to hear evidence, write a report and recommend whether or not the disputed land should be registered. The Registration Authority then makes a decision.

So what is a town or village green? Put simply, it is any area of land over which a significant number of inhabitants of a locality have indulged in lawful sports and pastimes as of right for a continuous period of at least 20 years. Areas of land submerged by water can also become town or village greens.

There are a number of practical measures that a landowner can take to prevent their land becoming a town or village green, or at least minimise the risk.

Given the complexity of this area of law, the entrenched position often adopted by the applicants and the protracted litigation which can ensue, landowners are advised to seek early legal advice if they own any land which could be at risk.

■ Neil Carter is a planning solicitor with BHP Law. Call him on 0191-221-0898.