“We are the Village Green Preservation Society…”

Mark Cummings  17-05-2023

The adoption of a Local Plan may, subject to its specific provisions, suspend the public’s right to apply for registration of a Town or Village Green (TVG).

An application to register a piece of land as a TVG can be a thorn in the side of legitimate developers.


What is a Town or Village Green?

There is a statutory right to apply to register land as a Town or Village Green under the Commons Act (CoA) 2006 if:

"A significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years."

A TVG, therefore, is an open space that has been used by the inhabitants of the town, village, or parish ‘as of right’  for ‘lawful sports and pastimes’ for a period of at least 20 years. It may or may not be subject to ‘rights of common’, or the traditional rights to graze domestic stock, turn out pigs in autumn, take timber for fuel, minerals from the soil, or fish from lakes, rivers or streams. Whether this space is defined as a town green or a village green depends purely on its location.

The existence of a TVG can restrict, or, in some cases, even prevent development, since it is a criminal offence to disturb or interfere with the use or enjoyment of a TVG.

An application to register a TVG can be a powerful tool in the hands of anyone wishing to prevent or impede a development. Such an application, whether it is likely to be successful or not, can delay development proposals, increase costs for developers, or even kill plans completely with no compensation for loss of development value.


How do Village Greens get blocked?

However, along with a range of other qualifying factors, or ‘trigger events’, a Local Plan defining a designated area for future development can, depending on its specific provisions, be a means of suspending the public’s right to apply for registration of that land as a TVG.

While under the CA 2006, there is a statutory right to apply to register land as a TVG if the requirements are met, amendments to the legislation, introduced in 2015, exclude this right in certain circumstances. These circumstances are known as ‘trigger events’. Their introduction is a move to limit the number of frivolous TVG applications designed to delay or disrupt the planning process; opponents of planning proposals were using the right to apply for registration as a way of frustrating legitimate development.

The starting point is that anyone can apply to register a TVG. However, the existence of a trigger event excludes the right of anyone to apply to register a TVG, so that a commons registration authority will not be able to accept any application to register the land concerned as a TVG.

In cases where an applicant is unaware of any exclusions, the commons registration authority must determine whether the right to apply has been excluded. Where it has, the authority must refuse to consider the application.

There are 16 trigger events. One, particularly important because it represents an early point from which a developer can be confident the site is safe from a TVG application, is where a Local Plan adopted by the Local Planning Authority “identifies the land for potential development”.


What does the Case Law say? 

However, two cases make it clear that looking at the Local Plan as a whole to establish its intentions is crucial.

In R (Cooper Estates Strategic Land Limited) v Wiltshire Council 2019, the land concerned was not specifically allocated for development in the Local Plan, but was within the settlement boundary. The Local Plan contained a presumption in favour of development within the boundary. That, in itself, was found by the Court not to be sufficient to qualify as “identified’. However, crucially, the Local Plan allocation for development within the settlement was more than the allocated sites would yield. Considered in the context of the Local Plan in its entirety, therefore, the High Court decided (and the Court of Appeal agreed) that the site was ‘identified’.

In R (Bellway Homes Ltd) v Kent CC 2022, although the land in question was within a ‘Green Gap’ (the open areas around and between parts of settlements, which maintain the distinction between the countryside and built up areas), the Local Plan envisaged that limited development might be able to take place. According to the same principles applied in the previous case, the Judge found, 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. In this case, to have decided otherwise would imply all of the Green Gap had been identified for potential development, which would clearly have conflicted with the underlying purpose to restrict development.


What if you want to make an application?

Clearly, a close legal analysis of the provisions of the specific Local Plan is necessary to signpost the way forward, where a site is at potential risk of a TVG application.

Contact the team at Samuels to identify the appropriate next steps.

Article credit: Lalla Merlin

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