Trespass and Assets of Community Value – Court of Appeal Guidance

Land or buildings that have long been used for recreational purposes by local people can be registered as assets of community value under the Localism Act 2011 – but what happens if that use consists of acts of trespass? The Court of Appeal tackled that issue in a guideline case of particular interest to property owners.

The case concerned a 12-acre field in the Green Belt that had been acquired by a property developer in 1996, but had since remained vacant. For many years it had been used by local people for children’s play, kite flying, exercising dogs, and nature photography. The developer had not granted express permission for such use, but had not objected and had until recently taken no steps to prevent it.

However, after a group of local people applied to register the field as an asset of community value, the developer did object and erected a fence around it. Public footpaths that crossed the field were left open, and the developer had acted entirely within its legal rights, but the denial of public access caused much local resentment. The group’s application was granted by the local authority and the developer’s appeals to the First-tier and Upper Tribunals were unsuccessful.

It was common ground that public use of the field beyond the footpaths constituted a trespass and the developer submitted that the grant of registration amounted to a reward for unlawful conduct. In dismissing the developer’s appeal, however, the Court noted that local people had made actual use of the field within the meaning of Section 88 of the Act. That provision meant that such use – even though a trespass – formed a valid basis for registration.

The moral of the story is that if you own land and allow others to make informal use of it, you may lose legal rights over it: contact us for advice.