It’s just not cricket! Village Greens step up for a second innings.

The latest village green case has been considered by the Supreme Court in R (on the application of Lewis) (Appellant) v Redcar and Cleveland Borough Council and another (Respondents). Five Law Lords unanimously found that the concept of "deference" was not one which had any force in assessing a village green claim. It seems unlikely that this case is the end of village green litigation; it is unlikely to be the beginning of the end, but is certainly the end of the beginning, as another bastion of Englishness once stated.

Undoubtedly, the Commons Act 2006 governing registration of village greens has had some unexpected effects; whilst few would object to the need to preserve genuine community spaces, which define the character of our towns and villages, the ease with which speculative applications can be made has enabled determined residents to exert a disproportionate influence over developments of much needed housing stock.

A cynic may observe that an article by an insurer, hot on the heels of the ruling in Redcar and attempting to sell the virtues of insurance, comes as little surprise. Truth be told, any insurer with a handle on the risks associated with a village green application will have been alarmed at the decision. In Redcar, their Lordships’ general conclusion was that "deference" was no more than usual polite behaviour between users of land with different objectives: just because the walkers waited for the greens to be clear, did not mean that they were not asserting a right to use the land, as they saw it. Before Redcar, deference was a key consideration when determining whether to insure, being considered evidence that rebutted one of the three pillars of prescriptive acquisition: permission.

The ruling doubtless raises questions and views have been expressed that further litigation is inevitable to bottom out the general principles expounded by their Lordships. The lawyers will refine the law, which will take time and money but pragmatically, can insurance be used to manage this exposure?

As with rights of light, the threat of a village green application is not a defect in title, in the traditional sense. But similarly, it is capable of sterilising major construction projects before the first trenches have been dug. While it is a common perception that title insurance shies away from risk, some insurers have adapted their risk assessment techniques and have insured village green risks.

Traditionally, title insurers will accept risks on the basis of a conclusion that the prospect of a claim is remote. Typically, this decision is heavily reliant on the planning process — the question of remoteness is considered answered if the planning application is successful and does not elicit any material objection. However, in the context of village green applications, this approach fails to acknowledge that legislation provides applicants with a 2 year period to make an application after a developer has made public its’ intentions to develop the land. It also fails to acknowledge that many development sites stand in abeyance while developers find funds.  During this time, residents may have become accustomed to using access to the site for recreation (albeit not for the requisite 20 year period) and may take umbrage when the bulldozers finally turn up. Perhaps the most important change in the risk landscape however, is public awareness of their legal rights. In the context of village green applications, the process is claimant-friendly and does not impose a significant burden of proof on an applicant in the early stages.

So what does Redcar do for the prospects of insurance against village green applications? It is encouraging that their Lordships openly considered the conflict between a land owners right to use their land freely and the rights of others to assert rights over it. It is also helpful that the judgment discussed a principle of “give and take”. Both of these issues should give insurers some comfort that in the event of a claim, they can adopt a negotiation strategy with applicants which can be used to find the middle ground and protect their insured’s site from total sterilisation.

There is a shortage of housing stock and land to build on. Insurers will endeavour to play their part but with publicity from cases such as Redcar, it seems inevitable that discussions over jam and scones will conclude the Commons Act is worth a try (or an ‘over’, dependant on which past time the applicants decide to rely!)

 Jean-Claude Domaingue

Senior Underwriter and Solicitor with CLS