The Penfold review is about to report. Its author has his work cut out, not least because the number and lack of integration of non-planning consents is a key challenge. Changes to one system will rarely give effect to the objective of a simpler, fairer system demanded by the Barker and Killian-Pretty reviews.
The regime for registration of town and village greens is a prime candidate. The Commons Act 2006 has empowered objectors to development at the risk of suffocating otherwise acceptable schemes. The lack of procedural safeguards creates a vacuum and can thwart schemes where all other consents are in place.
Fortunately, reform could be fair and mercifully simple. Village greens do not have to be green or used by people in a town or village. The qualifying criteria under section 15 of the act can be surprisingly easily met. Once registered, they are protected under Victorian legislation governing commons. Changes inconsistent with village green use will be illegal. Registration will prevent both development and hire to community users and may require management for a far wider range of sports and pastimes.
Registration regime at issue
Successful applications have now been made over beaches, highway verges, ornamental public open spaces and open wasteland. The London Borough of Croydon was recently forced to abandon an £85 million redevelopment project with Tesco after objectors secured registration of parts of the site. The National Housing Federation has complained that the regime is being abused by nimbies to prevent much-needed housing on public land.
Any land will qualify for registration if a significant number of local people have used it for lawful sports and pastimes "as of right" for at least 20 years. The use must either be continuing when the application is made or have ceased within specified periods. It can arise where an owner encourages or tolerates use of land for sports and pastimes, which can include dog walking and picnicking.
Implied permission is often critical and recent cases have delivered welcome clarity. In R (Lewis) v Redcar and Cleveland Borough Council, the Court of Appeal confirmed that the nature of any implied licence to use land must be viewed from the reasonable owner's perspective.
This objective test resolves much of the previous uncertainty. But it remains to be seen whether land held under statutes such as the Open Spaces Act 1906 is immune, as mooted by the House of Lords in R (Beresford) v Sunderland City Council .
Commons and greens are worthy of special protection. Those advising owners and their development partners should be aware of the law and the latent risks involved, identify how best to manage them and gauge whether pre-emptive applications to the courts for a declaration of the status of the land or a voluntary application for registration with the intention of deregistering the site are worthwhile.
Application merit rules posed
The timing of applications and procedures for determining them need reform. Village green applications can be made up to five years after access to the land ceased. The Commons Registration Regulations 2008 do not provide a detailed procedure or timetable for dealing with claims, aside from a sixweek objection period. Applications must be determined "as soon as possible" after the objection period.
This should limit interference with owners' interests where the clock for implementing permission is ticking. In reality, it can take at least 18 months to reach a decision, even on a meritless claim. These failings could be remedied by giving registration authorities or the courts the power to strike out applications that lack merit, introducing an administration fee to dissuade vexatious applications and imposing clear timescales for determination.
Another possible measure would require applications to be made within three months of the grant of planning permission, with detailed evidence due within one month of making an application. In addition, the time period for implementation of permissions could be extended where a town or village green claim is lodged.
For most areas of planning practice a rest would be as good as, if not better than, a change. For the town and village green regime, reform is urgently needed to prevent some genuinely good schemes getting lost in the long grass.
This article was published in Planning Magazine, 5 March 2010.