Developer’s attempt to block Town and Village Green application fails

Developers are often concerned by the risk of an application for registration of a Town or Village Green (TVG) affecting their sites.  Such an application, even if unsuccessful, can cause disastrous delays to development proposals as well as incur significant costs fighting the application, so knowing that the site is safe from such challenges at an early stage of the planning process is important.

Question: How and when does an adoption of a Local Plan suspend the public’s right to apply for registration of a TVG?

Answer: all depends on what the Local Plan provisions provide.

 

Background

The Commons Act 2006 provides the process for the public to apply for registration of land as a TVG where there is evidence of use of the land for recreation by people in the locality for more than 20 years. Applications for registration have often been used to defeat or delay development.

So for example where there is a proposal to develop land, opponents might seek to stop the development by applying to have the land registered as a Village Green. In that circumstance the developer could not in practice pursue the development proposal until the TVG application to the Council had been determined and refused.

Because opponents of proposals were using the right to frustrate legitimate development ambitions, the law was changed to suspend the right to apply for registration in certain circumstances. Those circumstances are called “trigger events”.

There are 16. One is where a Local Plan adopted by the Local Planning Authority “identifies the land for potential development”. This is significant as it represents an early point at which a developer can be comfortable that their site will not be at risk of a TVG application,

 

What does “identifies the land” mean?

There have been only two cases so far on this point but both endorse the basic proposition that you need to look at the Local Plan as a whole to see what was intended. In some cases the identification is explicit but in others it is not and so developers have to look at other broader approaches to try to show that a trigger has occurred.

In the first case (R (Cooper Estates Strategic Land Limited) v Wiltshire Council 2019) the land in question was not specifically allocated for development in the Local Plan but was within the settlement boundary and the Local Plan contained a presumption in favour of development within the boundary. That itself was found by the Court not to be sufficient to qualify as “identified’. However the Local Plan allocation for development within the settlement was more than the allocated sites would yield. Looked at in the context of the Local Plan as a whole the High Court decided (and the Court of Appeal Agreed) that the site was “identified”.

A recent case, decided in October 2022, (R (Bellway Homes Ltd) v Kent CC) related to land in Kent. The circumstances were very different but the same principles applied. The land was within a “Green Gap” but the Local Plan envisaged that some limited development only might be able to take place.  In this case the Judge found that, looking at the Local Plan as a whole, there was insufficient direct connection between the land and the possibility of development, so that the adoption of the Plan did not operate as a trigger event. To have found otherwise would have meant that all of the Green Gap land had been “identified for potential development”, in clear conflict with the underlying purpose of the policy to restrain development there.

 

Moral

If your site is at risk of a TVG application, take legal advice.  A legal analysis of the policies of the relevant Local Plan is essential to enable you to decide and act appropriately.

 

Simon Dimmick, Consultant, Boyes Turner LLP.

Simon has been a leading planning solicitor operating in the Thames Valley for over 30 years advising landowners, developers and councils.