Although some registration applications are genuine, many are only used to prevent development.

Registration of land as a town or village green (TVG) has become a potent weapon for resisting development. Past reforms created barriers and uncertainties, but the government's consultation on proposed changes to the law to facilitate development may redress the balance.

Green Use and Towards Reform

Interfering with village greens is an actionable nuisance and a criminal offence. Registration must take place where evidence shows a use by a significant number of the inhabitants of a locality, or neighbourhood within a locality, for 20 years (without force, secrecy or permission). Since 1990, applications have increased from a handful to several hundred per year because legislation and judgments made registration easier.

Many new registrations are due to genuine public use by the community. Increasingly, though, they are a tool to defeat development. The relocation of Bristol City Football club at Ashton Vale, for instance, is threatened by a claim relating to a landfill site.

Attempts at reform have created scope for abuse. The Commons Registration Act 1965 was introduced following the 1958 Royal Commission on Common Land to improve common land and TVGs. It created a right to register new greens to prevent encroachment by development because of uncertainties about boundaries and ownership of greens (and because the legal myth of customary use since 1189 could not always be satisfied). The 1965 Act did not reflect the commission's recommendation that new registrations should be limited to "open land surrounded by houses in rural parishes". Thus, registrations have ballooned (covering beaches, lakes, golf courses and urban and brownfield land).

The House of Lords made registration easier in R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 31 EG 85 (by confirming the wide scope of qualifying "sports and pastimes"). In Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95, it held that the giving of planning permission could end the right to register. The changes to the Commons Act 2006 closed this loophole and made it impossible to rule out registration until two years after the land has been fenced off. Developers may spend years assembling land and obtaining permission only to find that a viable claim has been made. The procedure for determining applications is also lax and can take up to 18 months.

Registration applications are costly for the registration authorities. Where a hearing is unavoidable, parties are forced to engage in time-consuming and fact-sensitive litigation. The 2010 Penfold Review of non-planning consents and this year's Farm Regulation Task Force recommended changes. In July, the Department for Environment, Food and Rural Affairs (Defra) published options for reform that had been trailed in the debate on the Localism Bill. The deadline for responses was 17 October.

Proposed Changes and What Is Needed

  • Declarations by landowners: these would prevent rights being accrued in the future without the need for fencing (or, where 20 years' use has accrued, trigger the two-year grace period for latent claims).
  • Character test: land would be eligible for registration only where it is unenclosed, sufficiently open for most sports and pastimes and uncultivated.
  • Integration: immunity for land subject to a planning application or extant permission for development (or marked for development or as a local green space (LGS)).
  • Fees: refundable charges for submitting applications that are intended to deter frivolous applicants.
  • Registration authorities can already reject claims early and deal with them without a hearing.

However, a duty of expedition (or a right to appeal non-determination after three months) is required. The character test would reduce the scope of claims, but not by as much as envisaged. The limits recommended by the 1958 commission would remain unaddressed because TVGs would still not have to be green or in a village.

The most radical proposal is that any existing planning permission will trump a TVG claim (regardless of whether public access issues were aired when it was considered). Whether that remains when the reform is announced in 2012 will depend on how the development sector makes its case.

More changes are required to ensure practical benefit and synergy with the Planning for Growth agenda: see box. First, the law is unlikely to change before late 2012. In the meantime, applications are likely to spike. Changes are needed to prevent the existing blight of acceptable development sites. Second, the reforms should encourage honesty during inquiries by penalising misleading testimony. Third, the reforms are likely to be offset by the National Planning Policy Framework proposals to enable the designation of LGS with equivalent effect to sites of special scientific interest designation. LGS designation may be seen as the final resort for failed TVG applications. Crucially, the reforms should bring real change.

Further Changes

  • Blight: the consultation does not refer to Defra’s power to deregister land on request. Guidance is needed on where deregistration is assured (for example delivery of affordable housing) and the law should be amended so that exchange land is not required where deregistration is sought for registrations made between now and the new character test coming into force where the test would be failed.
  • Testimony should be treated as if given under the Statutory Declarations Act 1835 so that misleading a registration authority would be an offence under the Perjury Act 1911.
  • Integration: amend section 241 of the 1990 Act to give immunity for authorised development where the public use has been raised during the planning process as a disadvantage of the proposals.
  • Clarification: the extent to which Town and Country Planning Act powers (for example, appropriation) can be used to override TVG status without ministerial approval or exchange land should be confirmed in light of BDW Trading Ltd (t/a Barratt Homes) v Spooner [2011] EWHC 1486 (QB); [2011] JPL 1247.
  • Grace: shorten the two-year grace period for claims to be brought once use has been interrupted to two weeks and amend the 2006 Act to confirm that notices prohibiting entry are as good as fencing.
  • Reciprocity: a reverse CPO where a landowner can require the local authority to acquire a TVG, at a compensation value that reflects the value uplift on properties in the benefiting community and allowing an extra rate on the residential properties benefiting to repay the authority.

This article was published in Estates Gazette, 29 October 2011