Landowners and agents should be aware of the recent court ruling which favours those applying to register land as town or village green. The court has allowed an applicant multiple opportunities to correct a defective application, despite the relevant deadline for making the application having long passed. This is particularly important for areas of land where a grace period has been triggered by the deposit of a landowner statement. The case also highlights the danger of making a landowner statement, which can sometimes act to tip off potential applicants, rather than having the desired effect of ending the 'as of right' use.
Town or village green applications
An application to register land as a town or village green (TVG) can 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 and continue to do so at the time of the application.
What happened in Cambridge?
In September 2014, St John’s College, Cambridge ('the college') lodged a landowner statement with Cambridge County Council ('the council') in an effort to end the use 'as of right' of Meadow Triangle for lawful sports and pastimes. This triggered the start of the one-year 'grace period' after which no application to register the land as a TVG could be made.
In July 2015, just within this grace period, Mr Davies ('the applicant') applied to the council to register Meadow Triangle as a TVG. The original application was considered defective, providing insufficient user evidence forms, omitting a duly signed Ordinance Survey exhibit and citing an incorrect statutory subsection, and was therefore not 'duly made' by the time the grace period expired.
Regulation 5(4) of the Registration of Town and Village Greens (Interim Arrangements) (England) Regulations 2007 provides for an applicant to be given a reasonable opportunity to take a certain action when that action might put the application in order. The parties were therefore in agreement that the applicant should be afforded an opportunity to amend the application.
This amended application was submitted in October 2015, but the college argued that the application was defective. The council, nevertheless, afforded the applicant two further opportunities to amend the application, which was resubmitted in July 2016 and again in August 2016, after the college had continued to argue that it remained defective. The college was notified that the application had been duly made in November 2016.
The college judicially reviewed the council’s decision to afford the applicant more than one opportunity to amend the application.
What did the court decide?
The college’s challenge was dismissed and the applicant’s TVG application was confirmed as being duly made. The Planning Court held that there was nothing in the language of Regulation 5(4) to suggest that the applicant could only be afforded one opportunity to correct the application.
Regulation 5(4) was considered to have two distinct limbs:
- Firstly, applications which are seriously defective on preliminary consideration can be summarily dismissed outright, without any 'reasonable opportunity' afforded for correction.
- Secondly, applications containing smaller defects that can be 'put right' through remedial action are subject to the 'reasonable opportunity' provision. Such applications should not be summarily dismissed on preliminary consideration.
The defects in question were decided to fall within the second limb and therefore a 'reasonable opportunity' was rightly afforded, even if this entailed allowing more than one opportunity.
It was also held that the applicant’s second amended application (submitted in July 2016) was not actually defective and that the college's assertions were incorrect.
Accordingly, the council were right to afford the applicant further opportunities to amend the application, but were, as a matter of fact, wrong to consider the amended application as defective in the first place.
The existing Defra guidance (October 2013) was considered to be inaccurate. Redrafted guidance was therefore annexed to the judgement, hopefully providing some element of clarity for future TVG applications.
What can developers and landowners take from the judgment?
This case creates further difficulty for developers and landowners. It stands as yet another judgment in favour of TVG applicants.
The decision is significant because it rejects a restrictive approach towards whether an application has been duly made. The Planning Court recognised that TVG applications are commonly submitted by lay people and held that the threshold for regarding applications as being duly made should be suitably low.
As mentioned, the judgment will be of particular relevance to areas of land where a grace period has been triggered by the deposit of a landowner statement. The lenient approach taken in the case could be the difference between a successful or unsuccessful registration. This is because an application will be dated when it is first received by the registration authority, even if it is defective, so long as it is corrected and considered within a relatively short period i.e. the corrected version has retrospective effect and can be 'duly made' even after the grace period has expired.
The decision also distinguishes between the 'preliminary considerations' and 'merits' of an application. Preliminary considerations are relevant to whether an application has been duly made in the first place. The merits of an application, such as the overall strength of the evidence, do not come into consideration until after the application is regarded as duly made. If seriously defective, an application can be rejected outright on preliminary consideration before its merits are addressed.
The judgment leaves important questions unanswered. For instance, where will registration authorities draw the line between 'seriously defective' applications and applications containing smaller, less significant defects? What will registration authorities consider as a 'reasonable opportunity' and a 'relatively short period'?
The case illustrates how making a landowner statement can be dangerous. The Open Spaces Society has publicly stated that it receives notice of all such statements being lodged with all registration authorities and routinely alerts any of its members in the vicinity of the land which is the subject of a statement, to encourage them to consider making a TVG application. Landowners and developers should think very carefully about potential TVG risk before making such a statement, as there are often other steps which can be taken.
How can Burges Salmon help?
We regularly provide fixed price reviews of town or village green risk for specific sites, including advice on risk mitigation. We have successfully defeated many town or village green applications at public inquiry, and understand the arguments and tactics needed to get results.
If you have any queries regarding town and village greens, please do not hesitate to contact Julian Boswall or Jen Ashwell.