08 July 2019

Landowners - be aware of ‘trigger events’ which may prevent land identified for development being registered as a town or village green

A recent ruling by the High Court has prevented the registration of a site as a town or village green (TVG) as the land had been ‘identified for potential development’ by the local authority. Landowners should already be aware of the need to protect their land from the possibility of registration as a town or village green (TVG). The ability to make such an application will cease if a ‘trigger event’ can be shown to have occurred until a termination event takes place.

The recent judgment in the Court of Appeal in Wiltshire Council v Cooper Estates [2019] EWCA Civ 840 gives clarity to what is required in relation to one such trigger event.

When can land to be registered as a TVG?

Under the Commons Act 2006, A TVG is described as land where:“…a significant number of the inhabitants of any locality, or neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.”

What is the consequence of registration of land as a TVG?

A TVG allows the use of land for recreational purposes. This effectively protects the land and prevents any development taking place. It is a criminal act to interfere with the enjoyment of a TVG and this includes the erection of any structure unless it is designed for its better enjoyment.

Are there any exclusions to the registration of land as a TVG?

Yes – there are a number of exclusions that came into force on 25 April 2013 and are known as ‘trigger events’. These include where:

  • An application for planning permission in relation to the land is publicised;
  • A draft of a development plan document (‘DPD’) which identifies the land for potential; development is published for consultation;
  • A proposal for a neighbourhood development plan which identifies the land for potential development is published by a local planning authority for consultation;
  • A neighbourhood development plan which identifies the land for potential development is made; and
  • A DPD which identifies the land for potential development is adopted under section 23(2) or (3) of the Planning and Compulsory Purchase Act 2004

What is the impact of the Court of Appeal decision in Wiltshire Council v Cooper Estates [2019] on a trigger event?

In this case, the Court of Appeal has ruled on an application to register land within the Royal Wootton Bassett settlement as a TVG. It was argued by the landowner that the application should have been precluded because the land in question had been identified as land for potential development in an adopted development plan and consequently a trigger event had occurred.

Royal Wootton Bassett Town Council (the Council) officers had argued that the provisions of the DPD in question, being the Wiltshire Core Strategy (WCS), were not enough to satisfy the definition of a trigger event. The Council accepted the officers’ recommendation and decided to register the land as a TVG. The landowner successfully applied to the Administrative Court to challenge the application and the Council appealed against this.

In his leading judgment, Lord Justice Lewison determined that the land in question was not one of the strategically important sites set out in the WCS, but lay within the settlement boundary of Royal Wootton Bassett and stated: “The overall thrust of the [DPD] was thus to identify those parts of Wiltshire in which development would be encouraged. In some cases, the plan descended into detail by specifically allocating sites. In other cases, including that of Royal Wootton Bassett, specific site allocations would come later in the plan period. But it is clear that those sites which had been specifically allocated by the plan itself would not, on their own deliver the required development over the plan period.”

Lewison also stated that for land to be precluded for registration as a TVG by a trigger event and that the land in question can be part of a larger area identified in the relevant DPD. 

He then went on to set out a number of ways in which land could be identified in a DPD which included: “…by a line on a map. If so, the line…need not be restricted to the application land alone. It could be identified by a verbal description of the parcels…it could also be identified by reference to prescribed criteria.”

Lewison concluded that: “a narrow interpretation of the trigger event would itself cause difficulties in the formulation and adoption of a [DPD]. Such a document may go through many iterations in the course of its preparation and examination. Suppose a draft plan proposes development in particular areas… Different sites may be proposed for allocation for development at different stages in the process. If an application for registration of a TVG could be made before the stage of allocation, the mischief which the change in the law was designed to prevent would recur.”

In this instance it was clear that the Council envisaged that during the development plan period that over 1000 homes would be needed in the Royal Wootton Bassett and “to allow a registration of a TVG within the settlement boundary would…frustrate the broad objectives of the plan. That is precisely the reason why Parliament decided that, in circumstances like the present, a TVG should not be registered, but instead, the question of development should be left to the planning system.”

What are the implications of this case for landowners?

Landowners should carefully examine DPD’s to assess whether land is adequately identified as having potential for development to benefit from a trigger event, which will be specific to the drafting within the relevant DPD. If land is adequately identified, the right to apply to register the land as a TVG will cease until a terminating event occurs.

What would be a terminating event in this instance?

A terminating event would be where the DPD is revoked or the relevant policy is superseded.

Should Landowners continue to protect land from TVG applications?

Yes – local plans are subject to review and policies may change. In addition, the identification of land in a DPD may be ambiguous and it will be case specific as to whether the exemption will apply.

For further information or advice on this subject please contact Emma Thomas. Emma is a member of Shulmans' Planning Team and has experience in preparing and advising on objections to Town and Village Green registration applications.