New procedures will make it harder to register land as a town or village green (‘TVG’). This is one of the Government’s many measures for lessening the impediments to property development. Two recent cases about registered TVGs have also been decided in favour of development.

Background

  • The Commons Act 2006 outlines the right to have a piece of land registered as a TVG, provided that “a significant number of the inhabitants of any locality, or neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.
  • The procedure for registration as a TVG has frequently been used by those seeking to block development proposals, as the effect of such registration means that no development can take place on the land (and may make it less attractive to purchasers). Some of the cases were covered in our last post on the subject.

Changes in registering TVG

  • The Growth and Infrastructure Act 2013 (‘2013 Act’) provides for a number of ‘trigger events’ that will preclude applications for registration of TVGs. The main one of use to developers is an application for planning permission. The same is true when the land in question has been allocated for development by the local authority as part of the Local or Neighbourhood Plan.
  • Applications for registration of TVGs for the land in question will only be able to proceed if one of the new ‘terminating events’ later occurs. ‘Terminating events’ include a ‘trigger event’ being revoked or ceasing to have effect, in which case the application for registration can proceed. This means that if planning is refused (and all avenues of challenging that refusal have been exhausted) then the right to apply for registration as a TVG will once again become exercisable.
  • The Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2014 (the ‘2014 Order’) came into force in February 2014 and this extends the ‘trigger’ and ‘terminating events’ to include land which is affected by a local or neighbourhood development order or land which is subject to an application for an order under the Transport and Works Act 1992. The 2014 Order also introduced a new terminating event, being a long stop date of two years after publication of a draft local plan or neighbourhood plan after which, the right to apply for a TVG registration will once again apply.
  • The amount of time in which those using the TVG had to submit their registration after their use stopped was two years but is now just one year (from the date the use stopped).
  • Landowners will be able to deposit a formal ‘landowner’s statement’ with the Council to end public use of their land (previously they had to take practical steps such as fencing it off). Such statements do not however prevent a new 20 year period of use from commencing so fencing and signposting may still be a sensible option.

Caselaw - rectification of the register

In February 2014, we saw two judgments from the Supreme Court (Taylor v Betterment Properties (Weymouth) Limited and Adamson & Others v Paddico):

  • In the Weymouth case, Betterment Properties succeeded in their application for deregistration of land as a TVG, therefore the land in question will no longer be protected from development. A 4 year delay between registration as a TVG and the application for rectification of the register was not sufficient on its own to prevent rectification following an incorrect decision to register.
  • In Paddico, the Court of Appeal had decided that the land should not have been registered as a TVG but the delay in making the application for rectification (12 years) would have made it ‘unjust’ to allow rectification. The Supreme Court allowed the appeal for rectification, notwithstanding the 12 year delay, due to the fact that no one had been prejudiced by the delay.

In both cases, it was held that a lapse of time between the initial registration as a TVG and the application for deregistration may make it “unjust” to allow the application to proceed, but there was no evidence before the Court to show that significant detriment to others had occurred as a result of that delay in these circumstances.

The amendments to the 2013 Act and these recent cases are likely to be welcomed by developers. Landowners may be encouraged to make claims for rectification, where they can prove that land had been incorrectly registered, although it should be anticipated that local people will attempt to argue that the delay has caused them prejudice. Events surrounding the registration and de-registration of land as a TVG are moving at a fast pace and no doubt we will continue to see caselaw on this highly contentious subject.