All too often in the past, planning proposals for a site have been thwarted by the threat of registration of a town or village green. It’s easy enough now to stop such a “spoiling” application and this does not necessarily require any action by a landowner, as the moratorium provisions introduced by the Growth and Infrastructure Act 2013 are triggered automatically when a planning application is published, or where a development plan is published in draft or adopted, identifying the relevant land for potential development.
It’s much less usual to hear about de-registration following a rectification of the statutory register where in a judgment the Court upholds the landowner’s claim and specifically seeks to support the democratic planning process. Which is what has just happened in a case heard by the Supreme Court.
The land in question was known as “Clayton Fields” in Huddersfield. The land had been designated for housing, planning permission had been granted in the past and there had been allocations in several successive local plans. However, the application of a residents’ action group resulted in the registration of the land in question as a village green. The landlord sought rectification, which was initially refused but the Court subsequently found in favour.
The case has made the legal headlines because of the consideration of the issue of delay – being the substantial time since the original registration was made in 1997. The Court needed to consider the question of adverse prejudice before the rectification was confirmed which would lead to de-registration of the land as a village green.
What has caught my eye are two statements by Lady Hale giving the Supreme Court’s ruling. First, she was keen to point out the "curiosity” that when the land was registered as a village green it had been allocated for housing. This is something which the new moratorium provisions now address.
Secondly, when considering the various elements of prejudice, Lady Hale acknowledged that the local inhabitants would lose the right to use the land for recreation, but this was something which they should never have had. Weighing heavily against that prejudice was a wider prejudice to the public in that the land would not be available for the use to which the democratic planning procedures had decided it should eventually be put – that is lawful development for housing, which included the provision of public recreation space.