This week the Court of appeal reviewed whether planning strategy policies are trigger events that can prevent town or village green registrations.
Wiltshire Council v Cooper Estates Strategic Land Limited  EWCA Civ 840 (16 May 2019)
The judgement of the Court of Appeal in Wiltshire Council v Cooper Estates Strategic Land Limited and others  EWCA Civ 840 is an interesting decision for property developers whose development plans are limited by the registration of land as a village green (a TVG)
The question for the Court was whether the adoption by Wiltshire County Council of the Wiltshire Core Strategy (the Strategy) amounted to a trigger event identifying the land as a potential development site and thus preventing the registration of a TVG.
Its key policies included a:
- Settlement strategy identifying settlements where sustainable development would take place.
- Delivery strategy containing a presumption in favour of sustainable development within defined boundaries of specific settlements.
What are the consequences of land being registered as a village green?
The registration of an area as a town or village green would make it a criminal offence to damage the green or interrupt its use and enjoyment as a place for exercise and recreation (section 12 of the Inclosure Act 1857) or to encroach on or interfere with the green (section 29 of the Commons Act 1876). In short, the public is entitled to use the land for sports and lawful pastimes, and any interference with that use is potential criminal.
For a property developer (and for those opposed to development in their locality) the registration of land as a TVG can well prevent development. As a result of the use of the TVG registration regime by opponents to development, the Commons Act 2006 was amended to introduce the concept of “trigger” events. Section 15(C) of the Commons Act 2006 (CA 2006) prevents registration of a TVG if one or more of various “trigger events” occur. Several trigger events apply to England, including where a development plan document which identifies land for potential development is adopted.
The policy of Section 15(C) Commons Act 2006
The TVG site was within the settlement boundary. During the first challenge to the registration by Cooper Estates the High Court held that the site had been identified for potential development by the Strategy giving rise to trigger event precluding registration as a TVG.
The Council appealed but the Court of Appeal upheld the High Court’s decision. The Court highlighted the policy underlying the Commons Act 2006 that the decision whether to protect a piece of recreational land with identified development potential should be achieved through the planning system. The site had been identified by the Strategy.
However, the mere fact that it was included within a settlement boundary was not enough to suspend the right to apply to register a TVG. Suspension of the right depended on the consequences of the site being within a settlement boundary, as set out in the Strategy. The question was whether the Strategy identified the site for potential development. In this case clearly the Strategy identified the site as having “potential” for development and it should not be registered as a TVG. The concept of “potential” was a very broad, and is not the same as likelihood or probability.
What the lessons to be learnt?
Inevitably, registration of land as a TVG is likely to prevent it being developed. Parliament has amended the Commons Act 2006 to make it harder for applicants to make a TVG application to prevent development of land.
The Court did comment that it is possible that other policies might trump the presumption in favour of development for sites within the settlement boundary, and thus compel a conclusion that the land was not identified for development. However, the term potential is very wide.
For developers and opponents alike, paying attention to the trigger events, which are found in schedule 1A of the Commons Act 2006 is key.
If there is no trigger event, and you are concerned about an area of land being vulnerable to a TVG application beyond self help measures, such as erecting signs confirming that users of the land do so without your permission, or fencing the land (assuming the 20 years of use has not yet been established), there is a statutory procedure to enable landowners to deposit a map and statement under Section 15A(1) of the Commons Act 2006 with the local authority to protect their land from being registered as a town or village green.