98.--(1) Section 22 of the Commons Registration Act 1965 (interpretation) is amended as follows.

(2) In subsection (1), in the definition of "town or village green" for the words after "lawful sports and pastimes" there is substituted "or which falls within subsection (1A) of this section.

(3) After that subsection there is inserted--

"(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either--

(a) continue to do so, or

(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.    

(1B) If regulations made for the purposes of paragraph (b) of subsection (1A) of this section provide for the period mentioned in that paragraph to come to an end unless prescribed steps are taken, the regulations may also require registration authorities to make available in accordance with the regulations, on payment of any prescribed fee, information relating to the taking of any such steps."

1. Town and village greens had to be registered under the Commons Registration Act 1965, along with common land, but the registers closed on 31 July 1970 and any land not registered by then could not be registered unless it subsequently ‘became’ a green.

3. Nineteenth-century legislation (the Inclosure Act 1857 and the Commons Act 1876) make it an offence to encroach upon a green. A House of Lords decision in June last year, the Sunningwell case, made it clear that that legislation applies even to newly-registered greens. Therefore, registration as a green is a powerful tool for local people wanting to save a piece of open land, which they have enjoyed for more than 20 years, from development.

4. As a result of this case, and publicity from the Open Spaces Society, Countryside Agency and others, more and more people are applying to register land as greens, usually when they hear of a threat to it. They apply to the registration authority (county or metropolitan borough or other unitary authority).

5. There have been various court cases which have clarified the meaning of such phrases as ‘lawful sports and pastimes’ and ‘as of right’. However, the problem remains in the meaning of the word ‘locality’.

6. It is necessary, in applying for registration of a green, to submit a map showing the land claimed and the area within which the people using the green live. Legal precedent directs that the applicant needs to show that there is a particular and recognisable community or neighbourhood where most of the recreational users of the land live or work, and to show the boundaries of this locality on a map. It is desirable that the locality should be sufficiently near to the land itself to establish a clear link with it.

7. Registration authorities seem to be insisting that the applicants can show that users come from traditional localities, such as within a particular parish. All this is difficult to do, particularly with the spread of urban areas, as people may well come from a disparate area not a neatly defined locality. Yet as a result of this technical requirement, applications are being rejected and the land developed.

8. The amendment alters section 22 (1) (c) of the Commons Registration Act 1965 to give a more flexible definition of the area from which people using the green should come, ie from in or around the residential or built-up area in which the land is situated.

What happened in the House of Commons

9. When a similar amendment was presented to the House of Commons Committee by Chris McCafferty MP, the minister, Chris Mullin replied that its purpose was laudable, but the government had recently consulted on a similar proposal in its consultation paper, Greater protection and better management of common land in England and Wales. It wanted to consider the proposal ‘in the wider context of common-land reform’ and hoped to announce the conclusions later this year. He could give no idea when, if at all, legislation might follow.

10. Although we subsequently asked the minister to analyse the responses to that proposal ahead of the rest, since this proposal is a discrete part of the paper, he declined to do so. That would have enabled the government to promote its own amendment in the House of Lords. If an amendment is not made to the CROW Bill, it will be too late to save many areas of open space.

11. Attached is a list of greens which have either been rejected, or are likely to be rejected, on grounds of the inadequate definition of locality in the present legislation. Since the matter was last debated on 23 May, five areas have been lost on locality grounds and they are marked with an asterisk on the list.

12. In the case of Cowm Top, Rochdale, which is being referred to the courts, the applicant is facing serious, personal, financial risk. If the law had been changed before this, there would be no grounds of appeal to the court.

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The Orchard, Broadmoor Lane, Bath and North East Somerset: open space threatened with development.

Newport Close, Great Baddow, Chelmsford, Essex: open space used for recreation, threatened by development.

Foreness Point, Cliftonville, Margate, Kent: open land.

Windle, St Helens, Merseyside: open land next to the church used for recreation. Housing development is planned here.

Ystrad Fawr, Caerphilly: open field at the edge of a valley, threatened with development.