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Out-Law Guide | 22 Aug 2011 | 12:35 pm | 5 min. read
The government has unveiled proposals which would make it harder for legislation governing town and village green (TVG) applications to be used to frustrate development. The Department for Environment, Food and Rural Affairs (Defra) consultation acknowledges the ever-increasing number of TVG applications that are being made, the resourcing constraints faced by the registration authorities in dealing with those applications and the obstacles that confront landowners once an application for a TVG has been made.
Defra's proposals recommend that:
The current system
Once an application has been made to register land as a TVG, the land that is the subject of the application is effectively protected from further development until the outcome of that application has been decided. These applications can cause significant delay to, and eventually even deter, any development proposals for the land.
This will be the case even if planning permission has been secured. Applications may be submitted up to the time, or even after, development begins on the site and so can act as a 'last ditch' attempt to stop unwanted development going ahead. As a TVG application stands outside of the planning system it must be determined on legal criteria without any consideration of the need, impact or hardship affecting any of the parties involved.
If an application to register land as a TVG is successful, local people will have a recognised right to use the land for recreational purposes. It is an offence to wilfully do anything on a TVG that will injure the green or interrupt its use and enjoyment as a place for exercise and recreation, which in turn places significant restrictions on the potential future use of the land by its owner.
For more information about the current system, see our Out-Law Guide to Village greens and the Commons Act.
The number of TVG applications has soared in recent years, with an estimated 185 applications to register new greens being made in 2009 alone. Applications are frequently used by local residents and pressure groups as a means by which to frustrate the planning system and planning applications. Many developers and landowners will have first hand experience of the potential for TVG applications to significantly hinder – and ultimately frustrate - development proposals. If the application is successful then its consequences can be severe, with any land registered as a TVG being effectively stripped of its development potential.
When an application is made the cost to the landowner and other objectors - not to mention the local authority as the registration and determining body in relation to applications - can be disproportionately high. Yet even these costs may prove to be insignificant to the landowner when compared to the potential financial loss caused by a successful TVG application.
Proposals for reform
Taking account of the planning system: in order for the planning system to be properly considered as part of the TVG application process, the proposals recommend that any land proposed for development cannot form part of an application to register land as a green. Land that is 'proposed for development' includes land that is the subject of a planning application, land for which planning permission is in place or land which has been proposed for development as part of a Neighbourhood or Local Plan.
Declarations by landowners: landowners already have the power to deposit a map and statement with the highways authority which shows admitted public paths at the same time as making a declaration that they as the landowner have no intention to allow any other part of the land to become subject to a public right of way. This declaration can be renewed every ten years and can be an effective way of rebutting any claim to a right of way on the landowner's estate acquired by long use during the period when the declaration is effective.
The proposals for TVGs contain similar reforms. Such a declaration will go against any evidence of use of a claimed green being 'as of right' under the Commons Act. Historically the main problem in the context of TVG applications is the need for positive action to prevent the public from using the land. The ability to make a declaration could be a useful tool for landowners to adopt in the future.
However, there is a concern that as the deposit of such a declaration would be public information doing so could lead to an influx of TVG applications if local residents and pressure groups see the declaration as a precursor to unwanted development of that land.
Sifting of applications: authorities will be given a new ability to 'sift' applications at an early stage. This will enable them to remove any weak or vexatious applications, or applications with insufficient evidence, from the process early on. This will place more of a burden on the applicant to submit all necessary supporting information.
The new 'character test': a TVG will not be able to be registered unless it can be demonstrated that the land is "open, unenclosed and uncultivated" in character. Although this will be more in keeping with the 'traditional' notion of a village green, such a subjective test could be difficult to apply in practice.
Application fees: the increasing number of applications can have a significant costs impact for registration authorities, leading to delays in applications being determined due to lack of resources. The reforms, therefore, also contain a provision for contributing to the cost of determining applications. The fee should represent a sufficient demonstration of commitment to the application by the applicant. The suggested limit is currently set at £1,000.
Local green space designation: the current TVG system does not take account of local need – either for open space or of alternative uses of the land. New proposals for local green space designation will allow local residents to earmark local green space land for "special consideration... whether it value is in its natural beauty, its historic resonances, its recreational value, its tranquillity or its importance as wildlife habitat".
Although this proposed designation is intended to be used in a way that complements investment in new homes and infrastructure, any land designated as local green space under a Local or Neighbourhood Plan would have the same level of protection from urbanisation as Green Belt land.
What steps should landowners be taking?
Landowners and developers should continue to take precautionary measures wherever there is potential for land to be subject to an application for registration as a TVG. This means continuing to use traditional measures to demonstrate that the public does not have permission to use the land - for example, erecting fencing and putting up signs making it clear that the land is private land. Action may also include undertaking thorough and regular site inspections to establish whether it is likely that an application will be made.
Potential purchasers should make enquiries about whether the land is used for recreational purposes both of the current landowner and of local residents. However such an approach should be taken with care, as it has the potential to put the local community on notice of proposed development plans.
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