Allyson Colby reviews a recent test case on section 16 of the Growth and Infrastructure Act 2013 and the registration of a town or village green.
Key points
- Land must be identified “for potential development” in a development plan for a trigger event to suspend the town and village green regime
- “Potential” is a broad concept, which is “not to be equated with likelihood or probability”
- The registration of land as a green was quashed because a “trigger event” had occurred
Following widespread concern that the town and village green system was being used to prevent development to which there were no planning objections, the government enacted section 16 of the Growth and Infrastructure Act 2013 (the 2013 Act). It inserts new provisions into the Commons Act 2006 (the 2006 Act) and applies where a “trigger event” has occurred (for example, where land is the subject of a planning application or permission) preventing applicants from applying to register the land as a green unless and until a corresponding “terminating event” occurs.
Schedule 4 of the 2013 Act contains a list of trigger and terminating events, which now form part of Schedule 1A to the 2006 Act. Paragraph 4 states that the adoption of “a development plan document which identifies the land for potential development” is a trigger event for the purposes of the legislation.
Test case
The effect of these provisions was tested in the High Court last year, before going to the Court of Appeal and resulting in the decision in Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840. The dispute concerned a small triangular parcel of land close to a housing estate in Royal Wootton Bassett, Wiltshire, which the residents had used to hold street parties and barbeques, to play cricket and football, and for other recreational activities.
The landowner fenced the land in 2006 and padlocked the gate in 2015, precipitating an application to register it as a green. Wiltshire Council, as the commons registration authority, enquired whether any trigger or terminating events had occurred and was informed that the owner had made three separate planning applications to construct a dwelling on the land (trigger events), but that they had all been withdrawn or dismissed (terminating events).
However, the landowner drew the council’s attention to Wiltshire’s Core Strategy Development Plan, which was adopted in 2015. It argued that the land was ineligible for registration because Core Policies 1 and 2 created a presumption in favour of sustainable development in certain market towns, which included Royal Wootton Bassett. Even so, the council took the view that the land had not been “specifically identified for potential development” in the plan. The council was satisfied that the conditions for registration were met and registered the land as a green.
The landowner asked the High Court to quash the decision, which it did. The judge considered that the land had been identified for potential development in the development plan, causing the Open Spaces Society to suggest that “if a general designation of this kind is sufficient to trigger the exclusion of the right to apply to register a green, much of England – and soon Wales – will have been placed out of bounds to applications”.
Plan-led
The Court of Appeal dismissed the council’s appeal against the first-instance decision. It noted the government’s policy that development should be “plan-led”, and that registration as a green sterilises land. So the provisions in the 2013 Act were enacted to ensure that recreational land with development potential is protected through the planning system – for example, as “local green space”– and not through the town and village green regime.
The planning authority had envisaged that more than 1,000 new homes would be needed in Royal Wootton Bassett during the currency of the development plan. And it was clear that the sites specifically allocated for housing in the plan would not deliver the required development on their own.
The council tried to persuade the Court of Appeal that if mere inclusion within a settlement boundary were enough to suspend the right to register land as a green the right would be removed in relation to land where there was no real risk of development. But Lewison LJ, who spoke for the court, ruled that the question was not simply whether the land was situated within the settlement boundary. The question was: what were the consequences, as set out in the development plan, of the land being within the settlement boundary of the town? In addition, the trigger event in paragraph 4 of Schedule 1A to the 2006 Act does not require the land in question to be identified “for development”; it must be identified for “potential development”, which is a very broad concept that was “not to be equated with likelihood or probability”.
Trigger happy
It was not a requirement of the trigger event that only the land in question is identified; it may be part of a larger identified area. Furthermore, land can be identified in a number of different ways – by a line on a map, by a verbal description, or by reference to prescribed criteria. There was also scope for more than one site to be included in a description and there was no difficulty in identifying the land in question as being within the settlement boundary of the town.
Lewison LJ accepted that some parcels of land within the town boundaries may be governed by conflicting policies protecting open spaces, playing fields and conservation areas, thereby precluding development. But registration authorities do not have to decide whether planning permission would actually be granted when dealing with applications to register greens – and, in any event, there was no such conflict here.
The presumption in favour of sustainable development applied. So the land had been identified for potential development in the development plan and it would frustrate the broad objectives of the plan if the court were to permit the land to be registered as a green.
Allyson Colby is a property law consultant
