In the midst of the 53 page long Growth and Infrastructure Bill are changes which developers may be thankful for. Often the bane of developments large and small, Town or Village Green applications made under the Commons Act 2006 can represent huge delays for projects that cost time and resources.
Some applications are successful and a project is halted or rethought but often these applications just act as a distraction from the main project and cause untold delay.
Once the Growth and Infrastructure Bill comes into force there will be added safeguards in place to ensure that claims are given less opportunity to bite.
The law as it stands:
If a “significant” number of local residents have used the land in question for lawful sports or past times for a period of 20 years or more then they can seek to register the land they have used as a Town or Village Green.
"As of right"
The applicants need to show that they have used the land “as of right” for that period of time. What that means is that they need to have been using the land without being given permission to do so and without stealth or force. The Courts have, to date, been fairly liberal in deciding issues regarding whether permission has been granted in favour of applicants. There are however some tensions surrounding whether use of land in accordance with statutory powers (such as open space land or recreation grounds) will be “as of right” which are currently being grappled with by the Courts.
The Commons Act 2006 allows for a grace period during which an application can be made following instructions from the land owner for the use of the land to cease. The period of time in the Commons Act is currently 2 years. In that time, an application can still be made for registration.
How is the law changing?
The Growth and Infrastructure Bill came into force with immediate effect on the 25 April 2013. However, not all the provisions commence on the same date.
- As of 25 April 2013 Town and Village Green applications will not be permitted in England once a “trigger event” has occurred. These trigger events include publicity of applications for planning permission, the publishing of a draft development plan or adoption of a development plan and the creation of a neighbourhood development plan. However, as developers have to consult on proposed planning applications this prior notice that a trigger event is going to occur will potentially give a local community sufficient time to submit a Town or Village Green claim before the trigger event occurs. It is therefore anticipated that Town or Village Green claims will come much earlier in the development process than is currently the case. As such a landowner is well advised to restrict access or only allow permissive access to land, so as to minimise the risks of applications being made.The legislation gives the Secretary of State power to amend the trigger and terminating events. There is currently a consultation ongoing in respect of proposals to:
- introduce a longstop date in relation to some of the existing trigger events;
- add additional trigger events which will widen the circumstances in which it will not be possible to apply to register land as a town and village green; and
- amend the corresponding terminating events to reflect the additional "trigger events.”
- As of 25 June 2013 provisions came into force which enable a fee to be charged for Town and Village Green applications. It is thought that the fee will not be less than £1,000. This provision will affect both England and Wales. This will be a sensible amendment to the current rules, where applications are free and can be made notwithstanding them being entirely spurious or unmeritorious, without any consequences for the applicant.
- From 1 October 2013 the provision reducing the “grace period” to one year will come into force. This provision will only affect land in England. The current grace period of two years does cause uncertainty and any reduction in the period of uncertainty will be a good thing for developers.
- A separate commencement order will be made for the provision enabling a developer to deposit a statement with the Commons Registration Authority which will bring to an end any period during which lawful sports and pastimes have been enjoyed as of right. If the use continues beyond that date a new period will start to run. This will permit a developer to “stop the clock” on sports and pastimes and start the grace period running, before the expense of submitting an application for planning permission is incurred. This provision will only affect land in England.This provision came into force on the 25 June 2013 for the limited purpose of making regulations. It is not known when the provision will come fully into force. Again the reduction in uncertainty that this mechanism will achieve will be a good thing for developers.
These changes have the potential to limit claims brought with the intention to delay or halt a development once the planning process has commenced, thereby reducing the risk of considerable delays.
Do the changes go far enough?
Some would say that the balance of power still lies in favour of the applicants when a Town or Village Green application is made. There is no statutory framework that sets out the process for determining such applications, and there is no mechanism for a developer to recover any of its costs in the event of either an unmeritorious claim or unreasonable behaviour on the part of an applicant, as there is for example in the planning system. Whilst the changes to the law (when they are brought into force) will be welcome news to developers facing Town or Village Green applications, more can be done to streamline the process, with the benefits of a reduction in uncertainty for all.
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