Town and village greens: developers are warned not to fall victim of TVG registration.

Developers will be aware that where land is registered as a Town and Village Green (TVG) then development of that land is effectively prohibited. Developers will note with interest that a recent Court of Appeal ruling effectively stated that where land has already been identified for potential development then it will be too late for an application to be made to register a TVG.

Tom Gibbons, Senior Solicitor in the Commercial Property department at Wilkin Chapman LLP notes that the prohibition on development of land that is registered as a TVG is well established and stems from a combination of:

• the Inclosure Act 1857, which protects a TVG from injury or damage and preserves it as a place for exercise and recreation; and

• the Commons Act 1876, making it unlawful to interfere with or enclose a TVG, unless with the aim of improving enjoyment of the TVG.

In order to register land as a TVG, an applicant must show that a significant number of the inhabitants of a locality or a neighbourhood within a locality have carried out lawful sports and pastimes on the land for a period in excess of 20 years. Tom notes that the meaning of this can be wider than some developers might expect: the sports and pastimes do not need to be formal or organised, and something as simple as walking the dog or children playing may be sufficient, so long as it is carried out ‘as of right’.

The high level of protection given to a TVG has meant that over a number of years residents and pressure groups have been using applications to register land as a TVG as a weapon in an attempt to frustrate unwanted development in their neighbourhood.

The government considered that the number of applications to register TVGs was having a negative impact on the ability of the planning system to support growth in a balanced way; this resulted in a change in the law introduced by the the Growth and Infrastructure Act 2013, which stated that the opportunity to apply to register land as a TVG would be lost once a ‘Trigger Event’ has taken place in relation to a particular parcel of land.

Tom advises that ‘Trigger Events’ include cases where a planning application has been publicised and where a draft development plan or neighbourhood plan identifies the land for potential development and the plan in question has been published or adopted.

The recent case of Wiltshire Council v Cooper Estates Strategic Land Limited related to 380 square metres of land in Wootton Bassett and is the first case to consider the implications of the law around ‘Trigger Events’ and what this means for developers.

The land was registered as a TVG, but the owner successfully argued that the registration should be revoked on the basis that the land was identified for potential development in accordance with the Wiltshire Core Strategy 2015 before the land had been registered as a TVG.

The Court stated that the purpose of the changes introduced in 2013 was that the planning process, rather that TVG applications, should take precedence when considering whether or not to protect a piece of recreational land.

The Court went on to consider how clearly the land needed to be identified for potential development in order for a ‘Trigger Event’ to have taken place, noting that the question is imprecise: the concept of potential development is not the same as ‘likely’ or ‘probable’ development.

The Court found that the relevant policies annexed to the Core Strategy identified land within certain settlement boundaries, and shown on plans annexed to the policies, as either being suitable for development or being the subject of a presumption in favour of sustainable development, and that this was sufficient to constitute a ‘Trigger Event’.

Tom advises: “Developers should be pleased with the outcome of this case. Whilst we would still advise carrying out searches to ascertain whether land has been registered as a TVG, a registration may no longer be the end of the story. If the land had been identified for potential development prior to the date of registration as a TVG then the registration could be set aside, potentially unlocking what may have seemed an unviable site for development. The benefit to a developer of researching the planning history and the relevant plans affecting an area of land could be substantial.

“There is potentially one note of caution though; residents and pressure groups can, of course, still object to the adoption of development plans and neighbourhood plans through the planning process, so it may be that the question of whether land can be developed becomes a political one rather than a legal one in future.”