The Planning (Wales) Act 2015 came into force on 6 July 2015 and has further enhanced the legislative divide between England and Wales for planning matters in a number of ways. Here we focus on the town and village greens (TVG) provisions. These changes are not yet in force, but need to be borne in mind now.
TVG law sounds quaint but applications by objectors to register development land as a new TVG are common and continue to be the most catastrophic risk facing landowners and developers as development is made unlawful, and there is no compensation for the loss of development value.
The Act has amended the Commons Act 2006 which regulates TVG in two main ways. The first enables landowner statements to be lodged with the commons registration authority and brings the law in line with the position in England. A landowner statement will bring to an end the period during which people have used the land for sports and pastimes ‘as of right’ – without force, secrecy or permission. However, use of land owner statements should continue to be treated with caution if land has been subject to public access for a lengthy period of time. A statement triggers the grace period for a TVG application to be made which may bring forward the very thing a landowner is trying to avoid. In particular, the Open Spaces Society is monitoring all landowner statements and notifying its local members when they are lodged to warn them they only have a year to make a TVG application.
Secondly provision has been made for the occurrence of events which preclude the registration of a TVG. This means that if certain 'trigger events' have occurred an application for registration of land as a town or village green cannot be determined unless and until a corresponding 'terminating event' has occurred. The trigger events are the grant of planning permission, the making of a local development order and the granting of a development consent order. The terminating events are the expiry, revocation, quashing or modification of the planning permission, local development order or development consent order.
While these provisions are welcome they do not go far enough to protect developable land. There are no trigger events (unlike in England) for land which is in the local planning authority process to secure planning permission nor for land allocated for development in a local development plan. It may be that this latter protection is introduced later, once the new local plan regime, which is also brought in by the Act has been implemented.
The net result is that TVG risk will continue to be more serious in Wales compared to England, and the position in England continues to be serious in a significant number of situations. The key lesson continues to be: do not go public with a planning application or a development proposal without having considered TVG risk first.