Towns and Village Greens are an old concept, but they still have implications for new developments as outlined here by Paul Grant, Senior Associate at Stevens & Bolton
It’s fair to say that writing an article on Towns and Village Greens (TVG) without mentioning maypoles or cricket pitches has become easier given the way in which the law has developed over the last decade. This is because what constitutes a TVG now extends far beyond what might ordinarily be understood by use of the term “village green”.
Landowners and prospective developers, and those who advise them, have to be aware of the risks to the development and commercially valuable land from this classification and the ability of the public to stymie development by making applications for Towns and Village Greens status. A passing familiarity with relevant legislation and case law is beneficial, and the recent case of TW Logistics Ltd v Essex County Council  EWHC 185 provides a useful consideration of the way in which the law is applied.
But before exploring the case in more detail, it is important to keep in mind the key provisions of the Commons Act, which sets out the law regarding registering land as a TVG. The Act states an applicant must prove that:
“A significant number of the inhabitants of any locality, or of any 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.”
The use must be continuing at the time of the application to register the land, or alternatively the application must have been made within one year of the use being brought to an end.
Once the land is classified as a TVG no development of it is possible. It must solely be used for recreational purposes.
The case: what can we learn?
The judgement in the recent TW Logistics Ltd case provides an opportunity to consider how the Town and Village Greens classification may apply to land that, at first sight, should not be considered.
Here, the land in question formed part of a commercial port at Allen’s Quay on the River Stour in Essex.
After the landowner had erected a fence half a metre from the edge of the quayside on the relevant land, an application was made to register the land as a TVG. The Registration Authority arranged for a non-statutory public inquiry to be held, and the outcome was that a reduced area of the land was deemed to have met the criteria to be classified as a TVG. TW subsequently challenged the Registration Authority’s decision to accept the application.
In the High Court, the judge considered the various aspects of the Inspector’s decision and concluded the following:
• Signs erected on the quayside were located at points where it was unclear that they applied to the land in question;
• There was no incompatibility between the use of the land for commercial purposes and the recreational use by members of the public. The two uses had coexisted during the qualifying 20-year period;
• A significant number of local people were using the land to access the quayside.
It is worth noting that the case predated the effect of the Growth and Infrastructure Act 2013, which has introduced further restrictions on the ability to apply for TVG status, most notably:
• A reduced period of one year within which to apply for TVG status following the end of the ability to use the subject land “as of right.”;
• The ability for landowners to submit a statement to the Registration Authority which will bring to an end an “as of right” period;
• Trigger events which relate to the planning or development status of the land such as planning permission being granted for development of the land, or the land being allocated for development in a planning policy document.
So what can a landowner do to enforce their rights and reduce the likelihood of the land being registered a TVG? The precise advice will vary depending on the circumstances, but generally:
It is important those that already own land take care to enforce their rights and are aware that their actions could trigger an application for TVG status. Particularly as such actions usually cast doubt on the ability of the public to use the land “as of right”.
For example, if a landowner deposits a statement with the Registration Authority, this will bring to an end the use of the land “as of right”. However, the risk is that there would still be one year within which an application to register the land as a TVG can be made.
Landowners will need to think about the wording of signs that are erected around the land and, also, in the light of the TW Logistics case, any signage may need to specify what land the sign is concerned with to avoid ambiguity.
Also, landowners need to consider whether to erect or maintain boundary fences. Again, such action will clearly refute the ability to use the land “as of right”, but it may provoke an application within the period of a year.
Given the trigger events that now appear within the Growth and Infrastructure Act, a landowner may wish to consider the development potential of their land with the Local Planning Authority, and whether this can be allocated in planning policy documents for consultation (and beyond). If there is the serious prospect of the land being allocated for development, this might result in an application being made, but it is possible that an allocation might slip under the radar of potential TVG applicants.
Prospective landowners and developers
Those considering buying land need to scrutinise the current use of that land before committing to a purchase, particularly if it is being acquired for future development. They will need to get a Commons Registration Search, as well as making appropriate enquiries of the Registration Authority as to whether an application has been made or any enquiries made in relation to making an application. Appropriate enquiries should also be made of the seller regarding the use of the land by members of the public, if any. A site visit will be extremely useful for signs of public use and recreation.
It is crucial to get appropriate advice on the extent to which the land has already been promoted for future development in the local planning process. If the land appears allocated for development in local planning documents and this constitutes a ‘trigger event’, that would prevent an application for registration being entertained by the Registration Authority. Such advice must consider the prospects of this allocation being followed through and formalised in the next steps of the policy making process. If the policy is revoked, or time runs out for the trigger event, the land will again be open for an application for registration to be made. Alternatively, if the land already has the benefit of a planning permission, an acquiring party would need to be careful that the permission does not lapse, as otherwise, this will also mean that an application for a TVG could then be made.
In summary, there are various considerations that can be made to mitigate the risks of land being branded TVG. However, the provisions of the Growth and Infrastructure Act 2013 need to be reviewed in a gradual tightening of the rules around the new restrictions to make it harder to apply for the registration of a TVG. Currently, the best approach for landowners and potential developers alike is to expect the unexpected, and not to rule out the possibility of land being treated as a TVG just because it does not fit the expected type. Or include a maypole.
Stevens & Bolton
Tel: +44 (0)1483 302264