As part of its campaign to promote growth, the Government is introducing measures to stop the registration of land as a town or village green being used as a way of preventing or delaying proposed development.

What is a town or village green?

Land registered as a town or village green may not be built on. An application for registration may be made where “a significant number of the inhabitants of any locality, or of any 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”. Land does not need to be flat or grassy to qualify as a green; any piece of open land could be a green as long as the other requirements are satisfied. The “sports and pastimes” need not be organised or communal; any recreational use is sufficient, so simply walking a dog or having a picnic will do. However, the use must be “as of right”, which means it must not be by force, or in secret, or with permission, the rationale being that the landowner should have been aware of the activity and failed to stop it. The application must be made while the qualifying use is continuing or within two years after it ceases.

Why are the rules being changed?

There has been a significant increase in the number of applications for registration since a new Commons Act was passed in 2006; the number is estimated at around 50 to 70 a year between 2003 and 2005 and around 100 to 200 a year between 2006 and 2009. This has imposed a growing financial burden on local authorities which administer the system. There has also been a change in the character of the application sites, with fewer being “traditional” greens. This has led to concern that applications for registration are being used to undermine the planning process and prevent or delay proposed development. The changes to the regime are contained in the Growth and Infrastructure Bill, which is currently making its way through Parliament. They are intended to remove what is seen as an obstacle to development and, therefore, an inhibitor of economic growth.

How are the rules changing?

Three changes will be made, all designed to prevent or discourage applications for registration and all applying only in England. This article is based on the Bill as it was introduced into the House of Lords; amendments may be made before the measures become law.

Statement by Owner

A procedure is to be introduced to make it easier for landowners to prevent the necessary period of recreational use from running. The owner will be able to deposit a prescribed form of statement and map with the commons registration authority which will have the effect of ending the qualifying period of use but without the landowner having to fence off the land and prevent public access. However, if the use continues after the statement is deposited, a fresh qualifying period will begin, so it would be necessary to deposit a further statement within 20 years to prevent the risk of a future application. If the 20 year period has already accrued, the deposit of the statement will trigger the start of the two year period during which an application for registration may be made.

The procedure is similar to the current system under which a landowner may make a declaration that there is no intention to dedicate land as a highway. The Bill extends the period that such declarations are effective from ten to 20 years so that it may be possible for the landowner to deal with both procedures together.

Restriction on Right to Apply for Registration

It will not be possible to apply for registration if an application has been made for planning permission or development consent in respect of the land. The restriction will apply from the time the planning application is first publicised until it is withdrawn, or it is refused and no further legal challenge to the refusal is possible, or the planning permission is granted but the development is not begun within the legal time limit. The restriction will also apply where the land is identified for potential development in a local authority development plan or neighbourhood plan. In that case the restriction will apply from the time the draft plan is published for consultation and until it is either withdrawn or the adopted plan ceases to have effect.

Fees

The authority which determines the application is to have the power to set the fee payable. The intention is to allow for greater flexibility and targeting of fees.

Comment

There has been a growing perception that many applications for registration are being used primarily to block, or merely delay, unwanted development and these changes should prevent that from happening. The ability to ensure that no application can be made will introduce much-needed certainty for developers and avoid the need to delay development for up to two years until an application for registration can no longer be made.

The blanket ban on applications once the land is the subject of development proposals might be regarded as disproportionate given that it could last for many years and would even apply to proposed development which would not prevent use as a green. It has also been pointed out that the list of events which trigger the start and end of the ban, as currently drafted, require some “fine tuning”, for example to include other types of planning application and to end the ban if a permission is quashed.

Two further changes originally proposed by the Government are not being made: the introduction of a “character test” so that only land which is unenclosed, open and uncultivated could qualify as a green, and an initial sifting of applications to weed out those which are weak or vexatious. A character test would only add to the uncertainty surrounding the registration system and is not logical as it is the nature of the use of the land which is relevant, not its appearance. An initial sifting procedure would have prevented applications being used solely as a means of delay but would also have created an increased workload for the authority. It would perhaps have plugged a remaining loophole, which is that a weak application can still be put in as a delaying tactic by objectors who learn of a proposed development through pre-application consultation.

A final point to note is that there is likely to be a rush of applications for registration before these measures come into force. The Bill has passed through the House of Commons and is about to start the Committee stage in the Lords. The restriction on the right to apply for registration and the changes to fees will come into force two months after the Act is passed, but the provision for the deposit of a statement by the landowner will not come into force until detailed regulations have been made.