In light of a recent Court of Appeal’s decision, we consider the power and scope of trigger events to protect land from registration as town or village green (TVG). Both current and proposed developments can be protected.
Can the existence of a development plan designating a defined area or location for future development prevent the registration of that land as TVG?
According to the recent Court of Appeal decision, ‘yes’. The judgment provides clear authority that this and several other trigger events can exclude an application to register land as a TVG under the Commons Act 2006 (CA 2006).
Town and village greens: an issue for developers
Applications to register land as a TVG can, at best, cause delay and ramp up costs for new developments. At worst, they can kill a development proposal with no compensation for loss of development value. Whilst searches can reveal whether land is already registered as a TVG, land which is not already registered can still be registered if certain statutory tests are met. This poses a serious risk for developers.
TVG registration applications are a powerful mechanism for those opposed to a development to deliberately delay or prevent a development. This is because:
- it is a criminal offence to cause any damage to a TVG or to undertake any act that interrupts the use and enjoyment as a place for exercise and recreation, and
- it is a public nuisance to encroach upon or enclose a TVG, or disturb, interfere with or build on a TVG unless done with a view for the better enjoyment of the TVG.
This prevents development in perpetuity.
TVG registration
Briefly, under the CA 2006, there is a statutory right to apply to register land as a TVG if:
'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'
Amendments to the legislation, introduced in 2015, exclude this right in certain circumstances. These are known as trigger events. The introduction of these trigger events appeared to be a government move to curb the use of TVG applications as a means of undermining the planning process.
What is a trigger event?
Trigger events are events related to the development of land which occur within the planning system. Where any such event has occurred in relation to a specific piece of land, the right to make a TVG application is excluded and the relevant authority must not accept any TVG applications for the land in question until a corresponding terminating event has occurred.
Examples of trigger events in England include:
- the first publication of an application for planning permission for the land, which will include circumstances where the permission is subsequently granted
- the making, publication or adoption by the local planning authority of a draft local plan, development plan or neighbourhood plan proposal which identifies land for potential development
- the first publication by the applicant of a proposed application for development consent under the nationally significant infrastructure project regime
- the publication of a notice of application for deemed planning permission in respect of transport and works act orders.
It is important to note that permitted development rights do not constitute a trigger event. Also, in Wales, there are fewer trigger events that developers can rely on to avoid TVG applications and they arise much later in the planning process.
How does this work in practice?
The starting point is that anyone can apply to register a TVG. However, the existence of a trigger event excludes this right meaning that a commons registration authority will not be able to accept any application to register the land in question as a TVG. If an applicant is unaware of any exclusions, it is the responsibility of the commons registration authority to determine – by making enquiries to each relevant planning authority and the Planning Inspectorate - whether the right to apply has been excluded. If the right has been excluded, the authority must refuse to consider the application.
This point was recently considered in the Court of Appeal in relation to the development plan trigger event.
Background to the case
Land at Royal Wootton Bassett owned and intended for development by Cooper Estates Strategic Land Limited was the subject of a TVG application under the CA 2006. The land in question was included in Wiltshire Council’s Development Plan as land falling within the settlement boundary of Royal Wootton Bassett. Therefore, in accordance with the core policies in the Wiltshire Core Strategy 2015, it is a parcel of land to which the presumption in favour of sustainable development applies. The land in question is not, however, identified by itself within the Core Strategy as one of the 16 strategically important sites. The key question was whether the land had been identified as land for potential development so as to amount to a trigger event under the CA 2006. Wiltshire Council concluded that it was not. Because, in all other respects the criteria for registering the green under the 2006 Act were satisfied, Wiltshire Council decided to register the land as TVG.
High Court decision
Cooper Estates challenged the decision through judicial review to the High Court claiming that the policies within the Core Strategy did identify the land for potential development and therefore constituted a trigger event. It claimed that Wiltshire Council acted unlawfully in accepting the application and registering the land as a TVG.
The High Court agreed with Cooper Estates that a trigger event had occurred. It quashed the Council’s decision and ordered that the error should be corrected by deleting the relevant entry on the register. The judge said that the Council should not have allowed the registration of the land and had made an error of law in accepting the application and registering the land.
Wiltshire Council appealed the High Court’s decision.
Court of Appeal decision
The Court of Appeal upheld the High Court’s decision and reasoning.
The judgment also gave some guidance on how to interpret the trigger event relating to development plans. The Court found that:
- a trigger event had occurred even though the site by itself was not specifically identified in the development plan and was instead part of a larger identified area
- the words ‘potential’ and ‘development’ should be widely interpreted
- the policy protection given to local green space was intended to provide the necessary protection to important open spaces instead of TVG applications.
Why is this case significant?
This case is significant as it provides a clear ‘developer friendly’ authority on the interpretation and scope of trigger events in relation to development plans. Specifically, the decision confirms that the existence of a plan identifying land for potential development can be protected from TVG applications. This gives primacy to the planning system as parliament intended.
Comment
Trigger events can provide a window of opportunity for developers by suppressing the right to apply to register land as TVG. This provides time for developers and can prevent objectors from strategically undermining the planning process and blocking development.
If an application to register a TVG is made just before a trigger event occurs the authority will consider the application for registration in the normal way, i.e it will not be excluded. Therefore timing of making a planning application (and potentially eliciting a TVG application) may be a strategic consideration for any development.
Trigger events are fact sensitive. If the Wiltshire Development Plan had been written differently, a trigger event would not have arisen. There will continue to be litigation on all the trigger events as there are still unresolved nuances.
For completeness, it is important to remember that trigger events do not necessarily exclude rights to apply to register TVGs forever. A trigger event only suppresses those rights while it is ‘live’. Every trigger event has a corresponding terminating event. A terminating event acts to reinstate the rights to apply to register a TVG. For example, whilst the adoption of a local plan identifying land for development is a trigger event, revocation of that local plan would constitute a terminating event thus reinstating the right to apply to register land as TVG.
New trigger events can be added and existing ones removed through legislation, so it is important to keep up to date with any amendments to the law which could affect development land.
How can Burges Salmon help?
We can:
- advise on existing trigger events including timings and strategy
- advise you on your legal position regarding TVG applications that may affect your development, and
- assist with judicial review of commons registration authority decisions in relation to TVG registrations.
For more information about the issues discussed in this article please contact Laura Fuller or Julian Boswall.