Steeles Law’s Head of Planning and Environment David Merson looks at the Coalition’s proposals to end the abuse of the village green legislation to unlock growth and boost aspiration.
The Coalition has introduced the new Growth and Infrastructure Bill. The Explanatory Notes to the Bill are not yet available but the CLG Background Notes can be found here.
One of the proposals contained therein is one said to stop the misuse of legislation to slow down agreed developments, whilst protecting its use to safeguard cherished community spaces.
Defra’s subsequent press release suggests that the plans “will ensure communities that wish to see land developed in their areas will no longer be overruled by an abuse of Town and Village Green legislation”.
The current position means that building work that has been granted planning permission or is undergoing community consultation can be delayed while the legal process of considering a Town and Village Green (TVG) application takes place. The effect is delay, uncertainty and unnecessary additional cost.
Defra cites among the evidence it has received for the proposal the example of a development site (drawn to its attention as part of the consultation) in Saham Toney, Norfolk. In this example Defra says that the Hastoe Group built ten houses on a piece of land which had been farmed for centuries by a local family that wished the site to be used for affordable housing. The use of the field for local housing had been consulted on and there had been an overall positive response from the local community. After the homes had been built, a TVG application was lodged. Two and a half years later the housing residents, owners, and Hastoe are still awaiting an outcome, with the combined legal fees to Hastoe, the landowner and the taxpayer sitting at a reported £50k.
So what does the proposal entail?
Registration of town or village green: statement by owner
S12 of the new Bill amends the Commons Act 2006, by inserting a new s15A which provides that where the owner of any land in England to which this Part applies deposits with the commons registration authority a statement in the prescribed form, the statement is to be regarded, for the purposes of s15, as bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates.
Subsection (1) does not prevent a new period commencing and any statement under subsection (1) must be accompanied by a map in the prescribed form identifying the land to which the statement relates.
An owner of land may deposit more than one statement under subsection (1) in respect of the same land and where more than one statement is deposited in respect of the same land, a later statement (whether or not made by the same person) may refer to the map which accompanied an earlier statement and that map is to be treated, for the purposes of this section, as also accompanying the later statement.
Where a statement is deposited under subsection (1), the commons registration authority must take the prescribed steps in relation to the statement and accompanying map and do so in the prescribed manner and within the prescribed period (if any).
Regulations may make provision for a statement required for the purposes of this section to be combined with a statement or declaration required for the purposes of section 31(6) of the Highways Act 1980; for the requirement in subsection (3) to be satisfied by the statement referring to a map previously deposited under section 31(6) of the Highways Act 1980; (c) as to the fees payable in relation to the depositing of a statement under subsection (1) (including provision for a fee payable under the regulations to be determined by the commons registration authority); as to when a statement under subsection (1) is to be regarded as having been deposited with the commons registration authority.
Register of section 15A statements
The new s15B requires that each commons registration authority must keep, in such manner as may be prescribed, a register containing prescribed information about statements deposited under section 15A(1) and the maps accompanying those statements. The register kept under this section must be available for inspection free of charge at all reasonable hours. A commons registration authority may discharge its duty under subsection (1) by including the prescribed information in the register kept by it under section 31A of the Highways Act 1980 (register of maps and statements deposited and declarations lodged under section 31(6) of that Act).
Regulations may make provision where a commons registration authority discharges its duty under subsection (1) in the way described in subsection (3), for the creation of a new part of the register kept under section 31A of the Highways Act 1980 for that purpose; as to the circumstances in which an entry relating to a statement deposited under section 15A(1) or a map accompanying such a statement, or anything relating to the entry, is to be removed from the register kept under this section or (as the case may be) the register kept under section 31A of the Highways Act 1980.
Restrictions on right to register land as town or village green
S13 inserts a new s15C in the Commons Act 2006 which deals with the registration of greens and in particular exclusions. The right under s15(1) to apply to register land in England as a town or village green ceases to apply if an event specified in the first column of the Table set out in Schedule 1A has occurred in relation to the land (“a trigger event”). Where the right under s15(1) has ceased to apply because of the occurrence of a trigger event, it becomes exercisable again only if an event specified in the corresponding entry in the second column of the Table occurs in relation to the land (“a terminating event”). The Secretary of State may by order make provision as to when a trigger or a terminating event is to be treated as having occurred for the purposes of this section.
The Secretary of State may by order provide that subsection (1) does not apply in circumstances specified in the order and may by order amend Schedule 1A so as to specify additional trigger or terminating events; amend or omit any of the trigger or terminating events for the time being specified in the Schedule. A trigger or terminating event specified by order under subsection (5)(a) must be an event related to the development (whether past, present or future) of the land.
For the purposes of determining whether an application under s15 is made within the period of two years mentioned in s15(3)(c), any period during which an application to register land as a town or village green may not be made by virtue of this section is to be disregarded.
Schedule 4 (which inserts the new Schedule 1A to the Commons Act 2006) has effect. For the purposes of the application of s15C of the Commons Act 2006 (as inserted by subsection (1)), it does not matter whether an event specified in the first column of Schedule 1A to that Act occurred before or on or after the commencement of this section. The amendment made by subsection (1) does not apply in relation to an application under s15(1) of the Commons Act 2006 which is sent before the day on which this section comes into force.
Applications to amend registers: modification of power to provide for fees
S14 make provision in section 24 of the Commons Act 2006 (regulations about making and determination of Part 1 applications) for regulations under subsection (1) made by the Secretary of State to make provision as to the fees payable in relation to an application (including provision for a fee payable under the regulations to be determined by the person to whom the application is made or (if different) the person by whom the application is to be determined).
Considerations
Many will see these town or village green amendments as long overdue given the way in which the mechanism has been, they would say, abused in order to frustrate development.
Others will no doubt complain about the centralisation of the power and the removal of the ability to legitimately protect the rights of local communities to continue enjoying the access to open spaces that they have done.
Either way these amendments are likely to generate controversy and contentious debate.
If you require further information or advice on any issues raised in this article or any other planning & environmental matter please contact David Merson on 020 7421 1720 or [email protected]
