Growth and Infrastructure Act contains some welcome changes to village green regime, says expert

Out-Law News | 01 May 2013 | 5:17 pm | 2 min. read

A new law will make it harder for residents to use town and village green (TVG) laws to oppose the development of land, an expert has said. 

However Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, said that the lack of a 'character test' for land subject to a TVG application was a "major failing" of the new regime.

Under the Growth and Infrastructure Act, local residents can no longer make a TVG application where plans are in place to develop that land.

"This change is very welcome indeed," Desai said. "It will, largely, stop the village green regime being cynically used as an anti-development weapon."

Land can be registered as a TVG if it has been used for recreational purposes for the preceding 20 years. Once registered, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the land or interrupt the public's use or enjoyment of it.

The new provisions will prevent TVG applications from being lodged where an application for planning permission has been made or granted, or when land has been allocated for development by the local authority as part of a Local or Neighbourhood Plan. The protection will also apply where the draft of a relevant Plan has been published.

In addition, from a date in the future that is yet to be confirmed, landowners who wish to allow some public use of their land will be able to do so without risking its future development potential. Landowners will be able to deposit a statutory 'landowner's statement' detailing their intentions with the commons registration authority. Previously, landowners had to challenge or take steps to prevent the land's public use in order to be able to prevent local residents from later claiming 20 years' recreational use 'as of right'.

The changes were made following a consultation exercise, which had also proposed the introduction of a 'character test' for the land subject to a TVG application. This would have restricted the type of land that could be registered as a TVG to ensure that unconventional greens, such as beaches, could not have been registered. The test was proposed following a number of high-profile cases which found that beaches, golf courses and other types of land could fall within the TVG provisions.

Commenting on a recent court case, property law expert Dev Desai said that the Government had decided not to go ahead with the test following strong opposition from the Open Spaces Society and other groups. "The decision was taken on the basis that the test would introduce subjectivity, unreasonable uncertainty and additional costs to the regime," he said.

"In my view, a character test would have been a welcome development," he said. "Without a character test, we will no doubt see the registration of more and more beaches and other pieces of land as village greens under the new legislation. I anticipate that, in years to come, we will look back at the failure to introduce a character or similar test as an unfortunate missed opportunity to change the law for the better."