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Town & Village Greens Update – Part I: restricting applications

05/12/2013

A hot topic between residents, landowners and developers has been the ability for residents to apply for land to be designated as a ‘town and village green’ (or “TVG”).  The application process set out under the Commons Act 2006 provides that local residents can apply for land to be registered as a TVG where it has been used “as of right” for lawful sports and pastimes for a period of 20 years or more.  However, the process has now been further developed and residents’ rights to apply may be restricted.

The requirement for the use to have been “as of right” means that such use was without force, secrecy or permission.  Most commonly this will therefore be established by dog walkers, joggers and children playing, who will use the land regularly, openly and over a long period of time.  Landowners may seek to prevent such use by erecting fences or putting up signs prohibiting use.

Registration of land as a TVG can have significant implications, not only restricting the landowner’s ability to use or develop it but also perhaps making the land less attractive to prospective purchasers.

Local objectors to development may apply to register land as a TVG, whether in response to particular development plans or to pre-empt any potential future development.  The early legislation was introduced to strike a balance between the need to preserve and improve areas of common land against the benefit of reasonable and sustainable development.

New legislation will however in certain circumstances restrict the right to apply for TVG registration in the first place.

The Growth & Infrastructure Act 2013 has introduced restrictions on the ability to submit an application following the occurrence of a “trigger event”.  Once a trigger event occurs, no application can be made.  However, the right is not necessarily completely lost and may just be suspended.

The Acts sets out the following ‘triggers’ and relevant timeframes:

1. Publication of an application for full or outline planning permission

This may be publication by the local planning authority but also notices that are placed on the site, given to adjoining landowners or placed in newspapers.

The planning application may have been submitted prior to the Act coming into force in April, but the Act will still apply and the suspension will run from whenever the publication occurs.

No application for TVG registration can be made whilst the planning application remains undetermined; or if withdrawn or refused until all legal challenges have been exhausted; or once granted whilst it is still capable of being implemented.

2. Identification of the land in question in a local plan or development plan

This applies whether the plan has been published in draft for consultation, or formally adopted or made.

No application for TVG registration can be made until the plan is withdrawn or superseded.

The of the right to apply for TVG registration will be automatically suspended from the occurrence of a trigger event, regardless of whether there would otherwise have been a valid TVG application.

If it is the case that a trigger event ends and no longer applies, the right to apply for TVG registration is resurrected.  Hence the right to apply for a TVG is not extinguished by the occurrence of a trigger event, but instead suspended for a period.

For developers it is not therefore full steam ahead, however this change will be beneficial if the TVG application is perhaps not legitimate and is submitted spuriously with a view to simply frustrating development.

It could perhaps be said therefore that the playing field is somewhat levelled so that tactically neither party can make a spurious application with the aim of defeating the other – whether residents applying for a TVG to prevent development, or a landowner applying for planning to circumvent a TVG application.

Timeframes are however important and the parties should ensure they are certain as to what rights they have; how long for; and when these should be exercised.  Any interested parties should look carefully at the particular circumstances and take legal advice.

To read more please click here.

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