The general right for any person to apply for land to be registered as a town or village green (TVG) where a significant number of inhabitants have indulged, as of right, in lawful sports and pastimes on the land for a period of at least 20 years, is a potential problem for landowners and developers. As we reported in May last year, the Growth and Infrastructure Act 2013 (the GIA 2013) has provided some relief for landowners and developers.
Land protected from registration as a TVG
The GIA 2013 sets out circumstances (known as "trigger events") the occurrence of which suspends the right to apply for registration as a TVG. The right to apply for the land to be registered as a TVG only becomes exercisable again if a corresponding "terminating event" takes place. The trigger events and terminating events are set out in Schedule 1A of the Commons Act 2006.
For example, if an application for planning permission is publicised (the "trigger event"), there is no right to apply for that land to be registered as a TVG unless the planning application is withdrawn or refused, or, where planning permission is granted, the period during which development must be commenced passes without development having been started (the "terminating event").
Other trigger events include:
A draft development plan document which identifies the land for potential development being published for consultation; and
A proposal for a neighbourhood development plan which identifies the land for potential development being published by a local planning authority for consultation.
In these cases, the right to apply for the land to be registered as a TVG would be revived if the document or proposal were withdrawn, or if it were adopted (in the case of the development plan) or made (in the case of the neighbourhood development plan). The development plan being adopted and the neighbourhood development plan being made are, in themselves, "trigger events" with corresponding "terminating events" (e.g. the document or plan being revoked).
Owing to concerns about the time that can elapse between, for example, the publication of a draft development plan for consultation, and its withdrawal or publication, a draft statutory instrument has now been laid before parliament, the effect of which will be to amend Schedule 1A of the Commons Act 2006 so as to impose a two year time limit after which the right to apply for registration as a TVG will resume.
The Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2013 will also extend the protection afforded under Schedule 1A to development proposed or permitted by local development orders and neighbourhood development orders. The two year period will also apply to these.
Where a notice has been published that an application has been made for an Order under the Transport and Works Act 1992, that land will also be protected from applications for registration as a TVG.
In order to try to prevent land from being registered as a TVG, landowners can deposit a statement with the commons registration authority to bring an end to any period during which persons may have carried out lawful sports and pastimes on its land.
The way in which the statement must be made is set out in The Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013 (the Regulations), which came into force on 1 October 2013.
Under the Regulations, upon receipt of an application, the local authority is to send an acknowledgment to the applicant and publicise notice of receipt of the application. However, in our experience, local authorities do not yet seem familiar with their obligations under the Regulations.
It is important to note that, whilst a landowner can deposit a statement to bring an end to any period of use, this will not prevent a new period from commencing. Therefore, the landowner must also take steps to ensure that the public is not able to use the land, as of right, for lawful sports and pastimes after the date on which the statement is deposited. This may include constructing signs and fencing, or giving express permission for the use.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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