Green and pleasant land?

The last 12 months has seen not only a change in town and village green (TVG) legislation, but also two decisions handed down by the Supreme Court, the effect of which, according to some commentators, is redressing the balance in favour of landowners. The Commons Act 2006 (CA 2006) has also now been amended by primary and secondary legislation that does appear to favour landowners.

This area of law has been contentious for many years and this appears set to continue. In the next six months, three further major TVG cases will be considered by the courts: Newhaven Port Properties Limited v East Sussex County Council and New Haven Town Council; R (Barkas) v North Yorkshire County Council [2013] IWLR 1521 (considered by the Supreme Court on 2 April, and a decision is awaited at the time this article was written); and the Southbank undercroft. These cases will consider both historical issues (including the definition of a beach as a TVG; the use of bylaws and statutory functions; and the critical difference for TVG cases where use has to be determined, either to be as of right or “of right” by the public at large) and one of the key amendments to the CA 2006.

Landowners cannot ‘sit on their hands’ and expect the law to protect them against TVG registrations; care and action is still required on the part of landowners if they want to use their land for development.

This article sets out why and how TVG claims arise, the procedure of registration before and after the amendments to the CA 2006, the effect of TVG registration, possible remedies available, and implications for landowners and developers.

Why and how do registration claims arise?

Picture the scene: the last area of greenery in a neighbourhood, not much more than shrubland perhaps, is rumoured to be sold for development. People who live nearby have had the advantage of using the land for, say, dog-walking or collecting blackberries, and don’t want to lose it as their resource – irrespective of who owns the land. They want to prevent the loss of the land, which also means preventing development. The ways and means of preventing development are considered: they can object to a planning application as and when it comes forward; they can consider an application for judicial review in the event planning permission is granted; or they can make an application to register the land as a TVG. In terms of achieving their objective of preventing development, the last option provides the most certainty; as, once registered as a TVG – save for instances where applications are later made to remove the TVG registration (Adamson and Others v Paddico (267) Limited and Taylor v Betterment Properties (Weymouth) Limited [2014] UKSC 7) – the land is effectively sterilised for development.

What are the criteria for a claim?

The statutory criteria are set out in section 15 of the CA 2006, and applicants need to prove each part of the criteria; failure to prove one element should mean the TVG claim to fail. The criteria are that a significant number of inhabitants of any locality or neighbourhood within a locality have indulged as of right in lawful sports or pastimes on the land, for a period of at least 20 years, and either continue to do so at the time of the application, or have ceased to do so, but the application is made within one year (in England) or two years (in Wales) of the date of having ceased that qualifying use. There was a five-year grace period for some applications, but that has now expired.

“A significant number of inhabitants” does not need to be in the hundreds. The number should be significant in terms of the potential number of inhabitants who could use the land as a TVG. The term “locality or neighbourhood within a locality” has caused a number of problems, leading to further litigation – see Oxfordshire County Council v Oxford City Council [2006] UKHL 25 and R (Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council and Others [2010] EWHC 530. It would seem that applicants can rely on limited areas to satisfy this part of the statutory criteria, which could be one residential street.

What the cases do show is that applicants are unlikely to be successful if they then try to retro-fit a locality or neighbourhood within a locality based upon the evidence relied upon.

Use “as of right” has a specific meaning; it must be without force, without secrecy and without permission. “Without force” would include use without breaking fences in order to gain entry to the land, and without ignoring clear signs stating the land is private. Permission can be implied or express but not mere encouragement – see R (Beresford) v Sunderland City Council [2003] UKHL 60.

Evidence in respect of lawful sports or pastimes for at least 20 years must show the use to be recreational, and more than use which would be more akin to the exercise of a public right of way only. So, for example, if dog-walkers and joggers use the same route across an area of land with very little evidence of recreational use elsewhere on the land, an application for TVG would be unlikely to succeed.

However, that same evidence could be sufficient for an application for a public right of way, and could trigger an application to modify the definitive map. Such an application would not necessarily prevent development, but would lead to further delay.

Uses must be lawful, and the use must be more than sporadic, for the entirety of the 20-year period claimed.

How is an application made?

The application form for registration is published by the Department for Environment, Food & Rural Affairs (DEFRA), and is available from the gov.uk website; the site also includes a range of support and guidance for applicants. There is a range of other guidance available online, including from DEFRA and the Open Spaces Society.

Evidence in respect of lawful sports or pastimes for at least 20 years must show the use to be recreational, and more than use

Once an application has been submitted, it will be considered by the Commons Registration Authority (CRA) appropriate to that area. The CRA will have specific council officers who will complete a preliminary sift of TVG applications to see if they have been validly made. If an application hasn’t been validly made, the CRA should inform the applicant and allow the applicant a reasonable opportunity of taking action to put the application in order – see regulation 5 of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007).

The timing of an application in such circumstances has been considered by the courts, and it has been found that a corrected application to register land as a TVG can have retrospective effect, so that an application not duly made until after the limitation period has expired may still be regarded as having been made in time – see R (The Church Commissioners for England) v Hampshire County Council and Guthrie [2014] Civ 634. However, delay on the part of the applicant to rectify deficiencies in the TVG application may be fatal to a claim, as in this case. This point is likely to take on more importance for TVG applications which will be made under the amendments to the CA 2006, where the two-year period of grace has been reduced to one year.

After the sifting process, TVG procedure differs as between different CRAs. Some CRAs prepare their own reports to the relevant council committee; others instruct barristers to act as inspectors and hold non-statutory public inquiries to test the evidence. In the latter case, the inspector produces, after the inquiry, a report with a finding as to whether the TVG claim has been successful. As part of that process of testing the evidence, inspectors have found that a TVG claim has been successful in respect of part of the land claimed, and the TVG application has been amended accordingly – see Oxfordshire County Council v Oxford City Council and Others [2006] UKHL 25. Applicants still have to prove the case for registration in respect of all the criteria under the CA 2006 to be successful.

After either the officer’s report or the inspector’s report, a recommendation is made to the relevant committee confirming whether the land subject of the TVG application has been made out and whether the register is to be amended to include the new registration. The decision to register land as a TVG by the CRA is subject to judicial review – see R (Lewis) v Redcar and Cleveland Borough Council and Another [2010] UKSC 11.

Why and how has the CA 2006 been amended?

Research undertaken for DEFRA in respect of numbers of TVG applications before and after the CA 2006, and the motivation for these applications, was largely inconclusive, but it would appear that many more have been brought before the courts after the act came into force. The Penfold Review of non-planning consents, published in 2010, highlighted the need to review the operation of TVG registration to reduce the impact on developments where planning permission had been granted. What appeared to be happening was that, where planning permission was granted, those who had objected to the planning application, but failed in their opposition, then went on to make a TVG application. Since the costs of a TVG application were just the statutory declaration and time spent by the applicant(s), a TVG application was cheaper and possibly a more certain way of preventing development than, say, an application for judicial review in an attempt to quash the planning permission.

The result of the Penfold Review was to amend the 2006 Act by the Growth and Infrastructure Act 2013 (GIA 2013), which inserted several safeguards for landowners and developers, in an attempt to redress the balance that many viewed as being very much in the applicants’ favour. The GIA 2013 has made provision for the following:

• trigger events and terminating events which prevent TVG applications being considered in certain circumstances once a trigger event has taken place;
• statements submitted by landowners which would be deemed to stop the clock on TVG qualifying periods; and
• a reduction in the grace period for making a TVG application from two years to one year.

How are the changes working in practice?

The application of trigger events and terminating has proved to be complex in practice.

Nine trigger events, with corresponding terminating events, were listed in the GIA 2013, this list has since been extended by the Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2014. One of the trigger events is when an application for planning permission is first publicised. Terminating events in relation to this particular trigger event are where:

• the application is withdrawn;
• the local planning authority has declined to determine a repeat planning application;
• planning permission has been refused, with all means of challenge having been exhausted; or
• planning permission has been granted, but that permission expires without having been implemented.

This trigger event is the simplest trigger event of all, but is itself not without its complications. Where a planning application is made for a large development, it is expected that pre-application consultations are undertaken with the local planning authority, and in some cases, also within the local community. Both sets of consultations would be considered as good practice; the latter, however, would put potential objectors on notice of an impending planning application, which could then trigger a TVG application. If a TVG application is made before the planning application is first publicised and no other potential trigger event can be relied upon, the TVG application may be valid, and, if so, will have to be determined by the CRA. If, however, the TVG application is made after the planning application is first publicised, the CRA may not accept the TVG application for determination.

One of the more esoteric trigger events under the GIA 2013 is where a draft of a development plan document is published for consultation, and it identifies the land in question for potential development.

It should come as no surprise that case law already exists which sets out what may or may not be a draft development plan document; this includes The Manydown Company Limited v Basingstoke and Deane Borough Council [2012] EWHC 977; R (RWE NPower Renewables Limited) v Milton Keynes Borough Council and Another [2013] EWHC 751; and R (Houghton and Wyton Parish Council) v Huntingdonshire District Council [2013] EWHC 1476. Even now, it isn’t clear what is or isn’t a development plan document for the purposes of the amended GIA 2006 [CHECK]. This argument is being considered by the courts at the time this edition went to press, in relation to the undercroft under the Queen Elizabeth Hall in London.

It is hoped that the undercroft case will help to clarify, if not resolve, the issue of trigger events and terminating events for TVG applications. Given the various arguments being pursued, it would not be surprising if the matter were appealed. The case will be transferred to the new Planning Court, with the hearing scheduled to continue in September 2014, and it could be one of the cases that could ‘leap-frog’ the Court of Appeal and be considered by the Supreme Court in the event an appeal is made.

An alternative protection for landowners under the amended CA 2006 is the making of a statement which will bring to an end any period of use “as of right”. If 20 years use “as of right” has not accrued, a TVG application should fail, on the basis that the applicant cannot prove that the use has been for 20 years. However, the lodging of the statement with the CRA starts the clock running on the one-year period within which an applicant could try and bring a claim to register land as a TVG. The lodging of a statement could therefore flush out a TVG application and, if evidence refuting a claim is not strong, the application could be successful.

How should solicitors advise landowners?

Until the amendments brought in by the GIA 2013 have bedded in, some remedies remain uncertain. Those remedies which are available include the making of applications to remove TVG registrations from the register. The application to remove a TVG registration should be treated as a full re-hearing of the matter. The two 2013 Supreme Court decisions referred to earlier (Adamson v Paddico and Taylor v Betterment) confirmed that, where there was little or no prejudice to third parties, rectification of the register should take place, although each case would be considered on its own merits.

The latest changes to the TVG legislation and the recent decisions made by the courts suggest that there is movement towards protecting landowners from the risk of TVG registration sterilising land for development. Such protections as are available are not straightforward, and still require action by landowners to protect their assets. Landowners cannot ‘sit on their hands’ and expect the law to protect them against TVG registrations; care and action is still required on the part of landowners if they want to use their land for development.