Demolishing property on a village green

There are only three days left to listen again to last Friday's You and Yours programme on Radio Four, but in this programme - see http://www.bbc.co.uk/programmes/b00slb1k#p0089w07 - there is an interesting discussion of the possibility of an affordable housing developer having to demolish houses on land that becomes registered as a town or village green after development has commenced. Is this the right outcome? DEFRA thinks so. Its published view of the position is as follows:

“What happens if a landowner decides to develop the land before an application for registration is made? It is for the landowner to decide whether to go ahead and develop his land. In the vast majority of cases, the landowner will know whether the past use of the land is capable of supporting a claim for registration as a green, and may act accordingly. In those cases where doubt may arise, section 15 ensures that the landowner may confidently proceed without risk of an application two years after any use of the land has been effectively challenged (as a transitional measure, a period of up to five years will apply from 6 April 2007 in relation to any effective challenge made before that date).

The courts have ruled that land does not become a green until it is actually registered, and the 19th century statutes protecting greens are unlikely to apply to works or encroachments that were made prior to registration. However, if building work has gone ahead and the land is subsequently registered, it seems that the local inhabitants will have recognised recreational rights over the land and it may be that the courts will have to determine how such rights can lawfully continue to be exercised where the works interfere with such use. Depending on the circumstances it is, in our view, possible that the building works would eventually have to be removed.”