Nourishing and protecting our urban ‘green’ space in a post-pandemic world

‘Every atom of open space you have left…is needed; take care you lose none of it [for] it is becoming yearly of more vital importance to save or increase it’. These words were written not by contemporary environmental campaigners, but almost 150 years ago by Octavia Hill, the Victorian social reformer and (later) co-founder of the National Trust. ¹ They continue to resonate powerfully today, when access to ‘green’ space near our homes for open air recreation and exercise has been shown to be essential – but sometimes in short supply – in the Covid-19 pandemic and associated lockdown.

Nourishing and protecting our urban green space is important – whether it comes in the form of urban parks, village greens, urban commons or allotments. Scientific research amply demonstrates the physical and mental health benefits of recreational access to nature in an urban setting. Increasing our access to ‘urban green spaces’ could deliver enormous recreational benefits, but also offer significant improvements in physical and mental health. Its recreational benefits are, furthermore, enhanced by people being directly exposed to nature. ² ‘Green exercise’ studies have shown that while people already benefit from spending time in green space, contact with nature significantly improves psychological health. ³ And it has been shown that exposure to natural landscapes while undertaking green exercise enhances its psychological and physical health benefits. ⁴ There are also huge potential resourcing benefits – it has been estimated that increasing the use of urban green space could generate a reduction in health expenditure of £2.1 billion p.a. ⁵ Research on the health benefits of green exercise also show that promoting nature conservation in urban green space can maximise its health benefits – its ability to ‘reconnect’ people with nature is just as important as its recreational value, and improving their biodiversity will also optimise the cultural ecosystem services that our urban commons can generate for the community.

The urgent need to protect and nourish urban commons has been emphasised by the Covid-19 pandemic – when restrictions on travel, work and social interaction have demonstrated the need for suitable urban green space that can be safely accessed for open air recreation. One of the few positive outcomes of the pandemic may be a refocussing of the minds of policymakers and government on the need to both protect our remaining open spaces, and to create new ‘green’ space in our towns and cities. This would represent a volte-face in public policy, which has in recent years favoured development. And austerity has meant that selling off publicly owned land is an easy option for local authorities struggling to maintain front line community services. In 2018, for example, the charity Locality published research showing that on average 4131 public buildings and parks are being sold off each year by cash-strapped councils. ⁶

So, what can be done? In the first place, we need to ensure that existing urban commons, village greens and public parks are protected from development and maintained as open spaces for public recreational use. And secondly, we need to create new ‘green space’ in cases where none is currently available in urban and peri-urban areas for open access by the public.

Take first the need to increase the legal protection afforded to existing village greens and commons, and also to land that is informally used for community recreational purposes. This will require a reversal of the policy reflected in recent legislation, which has favoured housing development over public rights of recreational access. There is constant pressure on ‘protected’ green space, with regular applications to deregister village greens and areas of common land for development. Take village greens as an example. One means by which communities can assert legal control over the protection of green space is by seeking to get land registered as a town or village green (‘TVG’) under the Commons Act 2006. Land can be registered where, for not less than 20 years, a ‘significant number of the inhabitants of any locality, or any neighbourhood within a locality’ have indulged in lawful sports and pastimes on the land. ⁷ Communities have had some success with this over the last 20 years or so, aided by a generous interpretation of the law by the courts. It has been held, for example, that land need not conform to a specific physical description in order to be a TVG: it does not have to represent the traditional village ‘green’ and may include part of a beach or even land that has been ‘created’ by the deposit of soil. ⁸ And once registered, a TVG can be used for all ‘lawful sports and pastimes’. ⁹ Famously, in the Sunningwell case, ¹⁰ the House of Lords somewhat generously held that ‘lawful sports and pastimes’ can include a wide range of recreational activities including dog walking, playing with children, blackberry picking and other forms of informal recreation. This sparked an uplift in applications for the registration of land as TVGs, which would then be available for a wide range of community uses.

Community-led action to secure green space suffered a blow when the Growth and Infrastructure Act 2013 blocked applications to register a TVG when an application for planning permission to develop the land had been made, or where land is allocated for development in a local development plan. ¹¹ The effect of this is to favour planning policy to maximise house building at the expense of protecting green space for existing communities. A further blow came at the end of 2019, when the Supreme Court gave a ruling in two cases that will have a profound impact on the future ability of communities to secure the registration of TVGs. ¹² The first was an appeal by Lancashire county council (as local education authority) against the registration of 13 hectares of land in the ‘Moorside Fields’ case. The second was an appeal by the NHS against the registration of 2.9 hectares in the ‘Leach Grove Wood’ case.

The Supreme Court ruled, by a 3:2 majority, that where land is held by a public body for statutory purposes which are inconsistent with the recreational rights conferred by TVG registration then it cannot be registered. This was based on the principle of statutory incompatibility – would the recognition of community recreational rights over a TVG make it impossible for a public body to carry out the other statutory purposes for which it held the land? In an earlier case, the Supreme Court had applied the statutory incompatibility principle to rule against the registration as a TVG of a specific area of land held by the Newhaven port authority for the purposes of its port operation. ¹³ The decision in the Moorside Fields case greatly extends this principle to deny registration as a TVG to land that is held by public bodies which have general powers granted by statute to hold any land for educational or health purposes. ¹⁴ Lord Carnwath held that the issue of incompatibility must be decided by reference to the statutory purposes for which the land is held by a public body – not by reference to how the land is actually used at any given time. ¹⁵ In the Moorside Fields case the land in dispute could not, therefore, be registered as a TVG even though the planning inspector had concluded that the only future intended purpose for the land was to provide outside activities and sports for the school – uses which were not necessarily incompatible with the use of the land by local inhabitants for lawful sports and pastimes if the land were also a TVG. ¹⁶ This decision will greatly restrict the ability of local communities to register as TVGs any land that is owned by public bodies – and to secure its long-term protection as community green space.

What then ought to be done to secure more recreational green space in our towns and cities? Landowners can voluntarily dedicate land as a TVG under provisions introduced by the Commons Act 2006. ¹⁷ This might be useful where public bodies – for example the NHS – wish to create new green space to secure the community health benefits it can deliver. Similarly, a landowner could dedicate a ‘new common’ by creating common rights vested in individual members of the community – this will secure registration of the land as ‘common’ land with open public access. ¹⁸ This might involve, for example, vesting rights of estover in members of the local community – the right to take the natural produce of the land, such as a right to pick fruit from trees, or to collect wood or berries in autumn. ¹⁹ The benefit of this approach would be to invest the community with property rights in the land and engender a sense of community ‘ownership’ and stewardship. The key problem in both cases, of course, will be persuading landowners to dedicate land for these purposes. And community rights to secure registration based on long customary usage should be reviewed and reinforced. Consideration should be given to repealing the 2013 Act provisions barring registration of TVGs where planning consent has been applied for, and to introducing legislation to reverse the negative impact of the Moorside Fields case on a community’s ability to seek registration of land held by public bodies as a TVG.

The planning system could play an important role. The pandemic has shown the need to urgently review existing planning policy to refocus attention on the need to create more green space when new housing development is approved, and to protect existing green space from being lost to development. The setting aside of land as village greens or new commons in local development documents would be an important first step. ²⁰ Local planning bodies also have the power to designate ‘local green space’ in local and neighbourhood plans, but this power is heavily circumscribed in current planning guidance. This stresses the need for it to be ‘demonstrably special’ to a local community - for example, because of its beauty, historical significance, recreational value, tranquillity or the richness of its wildlife. ²¹ The local green space designation should also not be used for ‘extensive tracts’ of land and is qualified in that it should ‘complement’ investment in sufficient homes, jobs and other essential services. ²² This is a poor substitute for the protection of recreational access rights through the registration of a TVG or new common. It should also not be forgotten that other existing planning tools – such as planning agreements and the community infrastructure levy – can be used to secure funds for the provision of new recreational space in our urban communities. Existing planning powers need to be proactively used to this end by public bodies and supported by much stronger planning policy guidance to promote both the creation and protection of urban recreational green space. If the political will to do so can be found, then the coronavirus pandemic may yet see a fundamental shift in policy towards nourishing our urban ‘green space’ – one that is long overdue.