In July the Government launched a consultation on proposed changes to the regime for registering town and village greens ("TVGs"). The TVG regime has been making headlines in recent years, as legislative changes introduced in 2007 - in particular the provision for a two year window for registration following the cessation of qualifying use - and subsequent case law have made it considerably easier to register land as a TVG, thus inviting exploitation by those determined to frustrate otherwise acceptable development schemes. If adopted, some of the changes now being consulted upon could go some way towards rebalancing the regime and thus protecting landowners.
The aim of the consultation is, according to Government, to:
- "strike a better balance between protecting high quality green space, valued by local communities, and enabling legitimate development to occur where it is appropriate; and
- ensure that when land is registered as a green, because of the exceptional protection afforded to new greens, the land concerned really does deserve the level of protection it will get."
To help achieve these aims the Government has devised a number of proposals on which it is now consulting. As alternatives to a "do nothing" option (preserving the status quo remains a possibility) it is inviting views on the following measures:
- enabling registration authorities to reject applications at an early stage where insufficient evidence has been submitted or where there is strong evidence that the application cannot meet the criteria for registration
- requiring an application fee, refundable if the application is successful;
- adding a ‘character’ test to the existing criteria for the registration as a TVG, so that only land which is unenclosed, open and uncultivated would be eligible for registration
- giving landowners the opportunity to make statutory declarations in relation to their land as a precautionary measure, negating in advance any evidence of use as a TVG; and
- preventing the registration of land already subject to planning application or permission for development, or designated for development, or designated as a green space in a local or neighbourhood plan under rules to be introduced in due course.
So will these changes correct the imbalance perceived by many, making the TVG regime fairer?
Whilst it is positive that the Government has recognised the need to address the problems posed by the regime, and whilst some of the measures suggested could be of real benefit to developers, it is not clear whether the options being consulted upon will address all of the key issues. In fact some are likely to give rise to concerns of their own.
For example, despite the obvious advantages of conferring on registration authorities the right to refuse to consider vexatious or ill-founded applications, such decisions could themselves lead to judicial review, resulting in considerable delay and uncertainty.
Whilst the introduction of an application fee may deter some applicants, unless such a fee is set at a rate higher than the suggested £1,000 it is unlikely to act as an effective deterrent in many cases.
The introduction of a character test is likely to prove controversial and complex. For example, it is not yet clear over what period, or in relation to what point in time, the test would be applied. Further, what exactly would "unenclosed" mean? Other questions, outside the scope of this short summary, also arise, suggesting that the proposal would add yet another layer of complexity to the already complicated statutory test and thus increase the risk of statutory challenge.
The proposal to allow the submission of landowner declarations against TVG registration is unlikely to be beneficial in many cases. As currently envisaged, the proposal would require the publication of such a declaration but leave intact the two year window within which applications could be brought thereafter - the combined effect of which is surely to increase the likelihood of applications that might not, otherwise, be made. There is also a risk that many landowners would not appreciate the need for a declaration, failing to recognise either the danger which the TVG regime poses, or that their land could be vulnerable - particularly where it does not resemble the popular image of the traditional village green. On the other hand, the proposal could act as a useful tool in property transactions by providing comfort to purchasers that action has been taken to protect land that, for practical reasons, it is not possible to fence.
A purpose of the proposed declaration provision is evidently to discourage landowners from preventing public access out of a fear of registration thwarting development potential. But whilst the provision could conceivably persuade certain public bodies to keep land open in some cases - paying fields and recreation grounds are the obvious example - it seems unlikely to convince many private landowners, for whom allowing public access carries a string of drawbacks and risks for little, if any, reward.
Linking the regime to the planning system is likely to be equally controversial, and demonstrates something of a misunderstanding, by Government, of the important distinctions between the two systems. The planning system looks forward to what is appropriate for the area in question. The TVG regime and its statutory test are backwards-looking and operate according to historic events, established fact and law. Further, the proposal could simply encourage early TVG applications. On the other hand, it is undoubtedly true that this is the proposal capable of providing the biggest potential benefit for developers. Preventing registration whilst a planning application is being determined, or following the grant of planning permission, will act a valuable protection against otherwise acceptable development being thwarted by objectors. If the Government can be persuaded in due course to include this provision in legislation it will amount to a welcome rebalancing of the scales, and a significant victory for the development industry.
Unfortunately none of the changes suggested, save for the final proposal discussed, will deal with the issues of uncertainty and delay caused by the introduction in 2007 of the two year window referred to above. It is this window that causes many developers the greatest practical difficulties. Nor is there any suggestion that steps will be taken to speed up the application process, or to introduce into it any greater certainty. Until these issues are addressed, key problems facing landowners will remain unresolved.
Even if all of the new changes are adopted, the true benefit to the development industry remains to be seen given the Government's commitment to introduce the new "Local Green Space" designation as part of its National Planning Policy Framework (see elsewhere in this Bulletin). It could be, therefore, that what the Government gives with one hand, it takes away with the other.
The consultation closes on 17 October.