The new Growth and Infrastructure Act 2013 will be a welcome amendment to the law on the registration of town and village greens from the point of view of landowners and developers. The Commons Act 2006 permits applications from anybody for registration of land as a village green where local inhabitants have engaged in lawful sports and pastimes without permission, force or secrecy for a preceding period of 20 years. In the wake of this, developers have faced the anxiety of incurring substantial costs in purchasing land and submitting planning applications in the knowledge that the whole process could be thwarted at any time by an application to designate the land as a village green. The Commons Act further provided for a grace period of two years for submission of an application where the use in question had ceased. Controversy has ensued with developers claiming the application procedure has at times been used as a weapon by individuals to prevent development of open spaces in their area. Once land has acquired status as a village green, it is an offence for a landowner to wilfully do anything on it to injure the land or interrupt the public’s use or enjoyment of it.
The Growth and Infrastructure Act however will curtail the freedom of individuals to apply for land to be redefined as a village green to a certain degree. The two ‘trigger’ events which will provide protection to landowners are:
- an application for planning permission, or
- the submission of a declaration to the Local Planning Authority confirming that an area of land is not subject to village green status.
Further, an application cannot be made where land has been allocated for development by the local authority as part of the Local or Neighbourhood Plan where the draft Plan has been published.
Once an application for planning consent has been published, the right to apply for land to have village green status is effectively frozen until a ‘terminating event’ occurs, such as the refusal of the planning application. In practice, a developer may wish to ensure that a planning application of some description has been submitted by the owner of the land before entering into a contractual commitment to buy.
The second trigger event enables a landowner to allow the public to use their land without compromising its future development potential. This provision will come into force shortly on 1stOctober 2013. For this measure to take effect, the landowner will be required to deposit a statutory ‘landowner’s statement’ detailing their intentions with the relevant commons registration authority. Once a landowner’s statement has been issued in the prescribed format with a plan, any period during which the people in the community have indulged as of right in lawful sports and pastimes upon the land will end. However, once lodged, the clock starts ticking again and the process must be repeated before the expiry of a further 20 years.
The Growth and Infrastructure Act will also curtail the two year grace period mentioned above to one year.
Bear in mind it is not just an area of greenery or grass that is liable to an application for village green status. The nature or character of the land is not deemed to be a significant factor in the new legislation thus leaving open the possibility, for example, that an area of concrete can be the subject of an application, or as has transpired in a recent case, a beach (R on the application of Newhaven Port and Properties Ltd) v East Sussex County Council 2013). In the Newhaven Port case, a tidal beach was refused village green status by the High Court however the Court of Appeal disagreed and overturned the decision. It remains to be seen whether beaches will continue to be registrable as leave to appeal to Supreme Court may be sought byNewhaven Port and Properties Ltd.
The failure of the Growth and Infrastructure Act to include a ‘character test’ for the land was considered to be a missed opportunity by some commentators with opposition coming from groups such as the ‘Open Spaces Society’. Ultimately it was rejected on the grounds that such a test would introduce too much subjectivity, unreasonable uncertainty and additional costs to the regime.
This is not legal advice; it is intended to provide information of general interest about current legal issues.