Life gets tougher for the developer!

Important provisions of the Commons Act 2006 affecting Town and Village Greens were brought into force on 6 April. The 1965 Commons legislation allowed for the registration of land as a Town or Village Green where an application was made by the inhabitants of a neighbourhood who could show that they had used the land for more than 20 years for lawful sports and pastimes, as of right, with no permission. The period of use had to continue to the date of the application. Advice to landowners has long been to either fence the land and to ensure that any breaches in the fencing were fixed, or to put up notices which gave permission for people to go on to the land but reserved the right to prevent access at any time.

Section 15 of the Commons Act 2006 makes two significant changes.

First, permission granted in respect of the land is to be disregarded in determining whether the use was “as of right” where the use continues to the date of the application. The notices referred to above are now ineffective in these circumstances.

Second, whereas previously the use had to continue to the date of the application, s.15(3) now provides that where the use ceased before the date of the application but after 6 April 2007, an application may be made within two years from the date of cessation. Therefore, even if the land was to be fenced now, the owner cannot be sure that he is free from a Town or Village Green claim until 2009. This applies even where planning permission has been obtained and even implemented.

Further, s.15(4) provides that where the use ceased before 6 April 2007, a claim may be made up to five years from the date of cessation. Under this provision, a landowner who fenced his land may still face a claim until 2012. There is an exception: where planning permission was granted before 23 June 2006, construction has commenced and the land is either unusable as a Town or Village Green or will become so when the construction is completed.

The rest of the Commons Act is expected to come into force later in 2007 and will be covered in briefings nearer the time.

White Paper

On 21 May the Department of Communities and Local Government published its white paper on changes to some aspects of the planning system, notably permitted development and decisions on major applications. Watch out for the key points in forthcoming briefings.