Summary and implications

In a recent unprecedented case a developer was allowed to proceed with a consented development scheme, despite the land being registered as a village green1.

The decision, which commented on several issues of public importance:  

  • Emphasises the power that disgruntled local residents may have to prevent development;  
  • Highlights that, where land is held or appropriated by a local authority for planning purposes, a subsequent village green registration will not prevent development; and  
  • Confirms that, where land has been registered as a village green prior to appropriation, development will be restricted.  

The pitfalls of buying common land

The status of land designated as common land, or a town or village green, is important for both the owner and potential owner of the land. Amongst other things, it may restrict the owner’s ability to develop and use the land.

The Commons Act 2006 allows local residents to apply to register open land as a village green. The test is whether a significant number of the local population have used the land for sports and pastimes for a period of at least 20 years2.

A potential developer can carry out a search to identify whether land is currently registered as common land or a town or village green. However, the absence of such registration will not necessarily prevent a future registration.  

If local opposition to a proposed development culminates in an application to register land as a town or village green, it can pose major issues for developers.  

Appropriation of the land

In March 2007, Monmouthshire County Council (the Council) appropriated Merton Green in Monmouthshire, for planning purposes. The land was subsequently sold to Barratt Homes (Barratt) in October 2007 in anticipation of residential development. The Council later granted full planning permission and Barratt began their development in March 2010.

Registration as a village green

From around July 2008, Merton Green Action Group (MGAG) started action to preserve Merton Green as a local area of common land. In July 2009 MGAG applied to register the land as a village green under the Commons Act. Following a planning inquiry, the land was registered as a village green in January 2011.  

To develop or not to develop?

The key issue that arose between MGAG and Barratt was the effect of the planning permission and appropriation of the land for planning purposes in relation to a later registration of the land as a village green. The question was whether this later registration would usurp the planning consent previously obtained.  

The fundamental legislative architecture for planning in England and Wales is the Town and Country Planning Act 1990 (TCPA 1990). MGAG argued that the Commons Act provisions about village greens, which were enacted after the TCPA 1990, prevailed over the TCPA 1990.  

Conversely, Barratt relied heavily on legal principles about the interpretation of statutes. They argued that the wording in the TCPA 1990 was entirely general and, if Parliament had intended any restrictions, these would have been expressed in the legislation.  

MGAG’s augments were rejected

Unsurprisingly, the court found against MGAG. The court held that the TCPA 1990 prevailed over the Commons Act and that the Commons Act had not expressly or impliedly repealed the effect of the planning legislation.

It was for Parliament to strike a balance between the respective public and private interests. Whilst it understood the concerns of local residents, there were no inconsistencies between the TCPA 1990 and the Commons Act 2006.

Section 241 Town and Country Planning Act 1990

(1) Notwithstanding anything in any enactment relating to land which is or forms part of a common, open space or fuel or field garden allotment or in any enactment by which the land is specially regulated, such land which has been acquired by a Minister, a local authority or statutory undertakers under this Part or under Chapter V of Part I of the Planning (Listed Buildings and Conservation Areas) Act 1990 or compulsorily under any other enactment, or which has been appropriated by a local authority for planning purposes:

(a) if it has been acquired by a Minister, may be used in any manner by him or on his behalf for any purpose for which he acquired the land; and  

(b) in any other case, may be used by any person in any manner in accordance with planning permission.  

(2) Nothing in this section shall be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than contravention of any such enactment as is mentioned in subsection (1).