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Trigger Events: Development v Town & Village Greens

Most people’s nostalgic view of a village green conjures up an image of the heart of a rural community; home to cricket clubs, church steeples, village fêtes, afternoon tea, and May Day celebrations.

However, in more recent times the Courts have adopted a far wider definition and all types of land have been registered as a Town or Village Green (TVG), including school playing fields, urban scrubland and golf courses.

The Effect of TVG Registration

The registration of land as a TVG effectively prevents development going ahead.

For this reason, applications to register land as a TVG rose to prominence in the first part of this century.

Growth and Infrastructure Act 2013

In recognition of this, the Growth and Infrastructure Act 2013 amended the Commons Act 2006 to introduce restrictions on the right to register land as a TVG.

The changes were intended to ensure that the occurrence of a “trigger event” would exclude the right to apply to register land as a TVG. The right to apply would only become exercisable if a “terminating event” subsequently occurred.

“Trigger events” must relate to the development of the land (whether past, present or future). They include the publicising of an application for planning permission and the adoption of a development plan which “identifies the land for potential development”.

A Recent Case

In May 2019, the Court of Appeal handed down its judgment in Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840.

This was the first time the Courts had considered the interpretation of what a “trigger event” is for the purposes of deciding whether or not an Application to register land as a TVG can be made.

In this Case, an Application to register land as a TVG had been made to Wiltshire County Council in April 2016.

However, in 2015 the Wiltshire Core Strategy (WCS) had been adopted and Core Policy 1 of the WCS set out a Settlement Strategy, identifying the settlements where sustainable development would take place.

Core Policy 2 of the WCS set out a Delivery Strategy to deliver at least 178 hectares of new employment land and at least 42,000 new homes between 2006 and 2026. Core Policy 2 included a presumption in favour of sustainable development “within the limits of development as defined on the policies map”.

The land which was subject to the TVG application was sited within the settlement boundary of Royal Wootton Basset by the WCS, where Core Policy 19 said that over 1,000 new homes would be needed during the plan period. Site allocations were to be brought forward at a later date.

Cooper Estates argued that the inclusion of the land within the settlement boundary of the adopted WCS was sufficient to mean that a trigger event which precluded a TVG application had occurred. Wiltshire County Council rejected Cooper Estates’ argument and the land was registered as a TVG.

Cooper Estates successfully challenged that decision in the High Court where the judge, David Elvin QC, agreed that a trigger event had occurred. The County Council appealed.

In dismissing the County Council’s appeal, Lord Justice Lewison said (the full Judgement can be found here) that the key question isn’t whether the land had been identified “for development” but whether it had been identified “for potential development”.

On that basis, a narrow interpretation of a trigger event which required a specific allocation of land for development could frustrate the purpose of the change in the law. Different sites may be proposed for allocation for development at different stages of the process.

The Court of Appeal therefore held that the land was “identified for potential development” through its inclusion within the settlement boundary under Core Policy 1 and Core Policy 2.  It was clear from the development plan that the planning authority envisaged that during the plan period over 1,000 new homes would be needed in Royal Wootton Bassett.

To allow the registration of a TVG within the settlement boundary would frustrate the broad objectives of the plan.

Lewison LJ said “That is precisely the reason why Parliament decided that, in circumstances like the present, a TVG should not be registered; but instead, the question of development should be left to the planning system”.

Implications

The Court of Appeal’s decision underlines how important it is to examine the planning policies which are applicable to a particular piece of land if it is subject to, or under threat from, a TVG Application.

A seemingly general policy, such as one which gives effect to a presumption in favour of sustainable development within particular settlement boundaries, may be sufficient to defeat a TVG Application if the land falls within those boundaries but isn’t specifically allocated “for development”.

In such circumstances it will be necessary to undertake a close examination of all policies which are relevant to the land in question in order to determine whether a trigger event has occurred.

 

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James Cook

Partner 
Commercial Property
JCook@LawBlacks.com
0113 322 1915
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