Under the Commons Act 2006, anyone can apply to register land as a town or village green where a significant number of people living locally have used that land, as of right, for 'lawful sports and pastimes' for at least 20 years.

Concerns about the use of the village green rules to frustrate or delay development led to changes in 2013. These changes meant that the right to register land as a town or village green no longer applied if a 'trigger event' had occurred.

Earlier this month, the Court of Appeal gave its judgment on the use of one of these trigger events in the case of Wiltshire Council v Cooper Estates Strategic Land Ltd.

Why are trigger events important?

Under section 15C of the Commons Act 2006, the right to apply to register land as a town or village green no longer stands if one of the events set out in the first column of Schedule 1A to that Act has occurred, and the corresponding terminating event, set out in the second column, has not occurred. The intention is to stop people from using the process to stifle development of land that is already on its way to being developed, for example, where a planning application has been publicised.

What was the 'trigger event' in this case?

The land in question is at the edge of the settlement boundary of Royal Wootton Bassett. Cooper Estates own the land and objected to the town and village green registration on the grounds that the land had been adopted for potential development in a development plan document.

This is one of the trigger events set out in the Commons Act 2006. As the corresponding terminating event had not occurred, Cooper Estates argued that the land could not be registered as a town or village green. Wiltshire Council disagreed and went ahead and registered the land, their view being that the provisions of the development plan were not sufficient to satisfy the definition of the trigger event.

The Administrative Court disagreed.

What did the Court of Appeal decide?

It was not disputed that a development plan had been adopted; the question for the court was whether the land in question had been identified for potential development.

The Court of Appeal emphasised that 'The trigger event is not that the land in question has been identified "for development"; but that it has been identified for "potential development".'

In this case, it was clear from the development plan that the planning authority envisaged that over 1,000 new homes would be needed in Royal Wootton Bassett.

The plan stated that it was not necessary to make specific allocations at the early stages of the plan. In Lord Justice Lewison's view 'To allow a registration of a TVG within the settlement boundary would, in my judgment, frustrate the broad objectives of the plan. That is precisely the reason why Parliament decided that, in circumstances like the present, a TVG should not be registered; but, instead, the question of development should be left to the planning system.'

Some trigger events, for example an application for planning permission in relation to the land, will be site specific and it will be clear to see whether or not they apply. Others, such as this one, will depend upon the wording of the development plan.

This case was not as clear cut as it might first have appeared and is very case specific. It is important that the objectives of a local plan are not prejudiced by an application to register a site as a town or village green. It is likely that the original legislation anticipated that a trigger event in the context of a local plan would have been an actual allocation.

What are the lessons from this ruling?

In the future, local authorities will have to ensure that their policies are clear. Landowners should continue to make sure that they protect their land from potential claims for town and village green status. Land registered as a town or village green cannot be developed in any way that is incompatible with that status.