Village green risk is the most catastrophic risk that can arise on a development site – total loss of development value with no compensation. Developers and landowners need to understand this risk.
The Planning (Wales) Act 2015 (Commencement No. 5 and Transitional Provisions) Order 2018 brought into force provisions of the Planning (Wales) Act 2015 which relate to applications to register town and village greens (TVGs) in Wales. It means that provisions of theCommons Act 2006 (CA 2006) which minimise the risk of development proposals being hindered by the registration of land as TVGs now apply in Wales as well as in England, albeit in a more restricted way.
The changes have been in force since 22 October 2018 and relate to landowner statements and exclusions on the right to register land as a TVG. This article clarifies the changes and highlights the key differences between the regime in England and Wales.
Landowner statements in Wales
TVG landowner statements have been available to owners of land in England since 2013. This allows a landowner to lodge a statement and map of the land with the relevant commons registration authority, which stops the clock on any village green use. There is then be a period of one year when a valid TVG application can be made. After this the land in question is safe from being registered as a TVG. However, whilst this sounds helpful, it is important to be very cautious about making such statements as they will often provoke TVG applications.
Landowner statements are now available in Wales as well as in England, though there are differences in how they apply in Wales. Most notably the period in which a person can make a TVG application after a statement is submitted is two years in Wales. This is longer than the one year period which applies in England and increases the likelihood that a TVG application will be made following the submission of a statement by a landowner in Wales.
The process of submitting the statement is also governed by a different set of regulations in Wales. The applicable regulations for Wales are the Town and Village Greens (Landowner Statements) (Wales) (No. 2) Regulations 2018 which are broadly similar to the equivalent regulations in England from 2013. The regulations provide direction on how to deposit a statement correctly, how to manage and publicise an application and how the relevant register should be kept.
Some of the differences to note in Wales are:
- it is necessary to submit a map for every application in Wales whereas applications in England can refer to a previously deposited map;
- unlike in England, an authority in Wales must notify an applicant if they believe that the application does not comply with the prescribed form set out in the regulations;
- only part B of the statement should be included on the register in Wales while the whole statement must be added in England; and
- there is no guidance on the electronic version of the register in Wales. The electronic version of the register in England must be available for public inspection on the website, should have a search facility and must make provision for the register to be inspected at the relevant office of the authority.
Exclusions - what are the trigger events in Wales?
As is the case in England, the right to make a TVG application will be excluded if one or more trigger events occur. The right will remain excluded until a corresponding 'terminating event' takes place. The trigger events and terminating events for Wales are listed in Schedule 1B of the CA 2006.
There are three trigger events which apply in Wales. These are:
- planning permission is granted or deemed to be granted under the Town and Country Planning Act (TCPA 1990);
- a local development order which grants planning permission for operational development of the land is adopted by the local planning authority; and
- an order granting development consent is made by the Secretary of State under s.114 of the Planning Act 2008 (PA 2008).
How are the trigger events in Wales different to England?
In England, there are a greater number of trigger events listed in Schedule 1A of the CA 2006 and therefore these cover some events which are not listed as trigger events in Wales for example:
- a development plan document which identifies the land for potential development is adopted or a draft is published for consultation;
- a neighbourhood development plan which identifies the land for potential development is made or a proposal is published for consultation; and
- a notice is published that an application has been made for deemed planning permission in respect of a transport and works act order.
There are also some very important differences between the trigger events that apply in Wales and the corresponding trigger events in England.
A developer in Wales will be protected from a TVG application when planning permission is granted or deemed to be granted. In contrast, the right to register a TVG in England will be excluded when an application for planning permission is first publicised.
The adoption of a local development order by a local planning authority in Wales will forbid anyone from registering a TVG. The exclusion will be triggered earlier in England, namely when a draft local development order is first published for consultation under the TCPA 1990.
Developers in Wales will be protected when the Secretary of State makes an order granting development consent. In England, there will be protection when a proposed application or an application for an order is first publicised under the PA 2008.
What is the implication of this for developers?
While the introduction of these provisions gives more protection to developers in Wales, there continues to be a significant difference between the protections on offer for developers in Wales compared to England. The legislation in Wales is considerably less favourable to landowners and developers compared to the regime in England. The two year grace period for landowner statements in Wales means that there is an even greater risk of a TVG application after depositing a statement. Furthermore, there are more occasions when the right to a make a TVG application is excluded in England as the trigger events are more extensive and take effect at an earlier stage. The trigger events for Wales are more limited and will only help developers later on in the development process.
These differences further highlight the divergence between planning legislation in England and Wales. Developers and landowners should be aware of this and consider how it will impact any planned developments