What do we have to prove for a TVG?

When you’re applying to have land registered as a Town or Village Green (TVG), it doesn’t matter whether the landowner (in this case, Bristol City Council) or the tenant (here, Cotham School) is enthusiastic about the idea or not. It’s purely a legal test. If you meet the test, the land gets registered – and the reverse is also true.

The core of the test is this: has a significant number of the inhabitants of the locality indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years?

In the case of Stoke Lodge Playing Fields, the issues being debated are pretty limited – partly because a previous TVG application was made in 2011, and in that case it was held that all parts of the test were met except for one: although lawful sports and pastimes had been going on for at least 20 years, they had not been ‘as of right’ for the whole of that time.

What was the issue? To get land registered as a TVG, local people have to be using land ‘as of right’ which means ‘as if they had a right’ to do so. That means their informal use can’t be in secret (which it clearly wasn’t here – it was on a large scale and over many decades) and it can’t be with permission. It also can’t be ‘by force’ which covers both physical force (like climbing over a wall) and also using it despite the landowner making it clear that you’re not supposed to. The defining issue in the first TVG application was a small number of signs that were put up at entrances to the playing fields in the early/mid-1980s by Avon County Council.

In TVG1, the 20-year period ran from 1991 to 2011, and the Inspector who was tasked with looking at the evidence and held a public inquiry into the application, considered that the signs made use not ‘as of right’ up to April 1996 when Avon County Council was abolished. Effectively, he held that the landowner had made clear by those signs that it was objecting to informal recreational use (even though that use carried on regardless).

For our current applications, the 20 year period starts in 1998 so the relevant landowner throughout the period was Bristol City Council. BCC didn’t put up any signs (except for one in 2009 which we’ll talk about another time) but the issue is whether the Avon signs that were put up 12-15 years earlier were effective to make use not ‘as of right’ even after Avon had ceased to exist.

Signs don’t automatically prevent use being ‘as of right’ – previous court cases have established some principles around this. The test has a number of elements to it, which we’ll tackle over the next few posts.