BDW Trading Ltd (t/a Barratt Homes) v Anne-Marie Spooner (Representing the Merton Green Action Group), Melin Homes Ltd (2011).

In 2007, Monmouthshire County Council appropriated land for planning purposes and planning permission was obtained for residential development. Before development commenced a local action group successfully applied to register the land as a village green.

In considering the claimant's challenge to this registration, the court looked at whether the Commons Act 2006 expressly or impliedly abrogated the effect of the earlier section 241 TCPA 1990 (section 241). This states that where land is appropriated by a local authority for planning purposes, and notwithstanding any other enactments relating to common land (which includes village greens), it may be used by any person in any manner in accordance with a planning permission.

The court held that it is for parliament to assess the balance that needs to be struck between the public interest in developing the land and the interests of individuals using the land as a village green for recreational purposes. Partly from the wording of section 241 itself, there was no clear evidence that it was parliament's intention for the Commons Act 2006 to repeal section 241.

This case is an interesting move by the courts in favour of developers. However, its application is limited to where land was originally appropriated by a local authority for planning purposes and planning permission has been granted for the land. A later application to register the land as a village green will then fail. If the land was never appropriated by the local authority for planning purposes, an application to register the land as a village green could still hinder proposed development on the land.