UK: Village Green Problem Solved?

Last Updated: 19 August 2011
Article by Roy Pinnock and David Cox

The UK Government is seeking views from those affected by the current Town and Village Green regime on proposals for radical change to the law to facilitate development.

The UK Department for Environment, Food and Rural Affairs published options for reform of the Town and Village Green (TVG) regime at the end of July that were trailed in the House of Lords debate on the Localism Bill. SNR Denton will be responding to the consultation in October and we would welcome the opportunity to discuss your experiences and views so that they can be reflected in the suggestions we make to clarify and improve the proposals.

The consultation document can be downloaded here.

Some of the background issues are covered in our legal update columns for Planning Magazine on emerging law and suggested reform: March 2010 and July 2011.

Reform Overdue

Town and Village Greens are an important part of our history, and deserve protection. Unfortunately, the legislation that protects them was poorly thought through and TVG applications have become a weapon in the hands of those seeking to delay planning applications, with a number of spurious but costly applications being made. There is a general acceptance that the criteria and procedures for registration need to be improved.

The proposed reforms reflect some, although not all, of the changes to the Localism Bill and others we have lobbied for on behalf of clients and through participating in the Penfold Review:

Streamlining: this includes vetting and early rejection of hopeless and vexatious claims (although these powers are in fact already broadly available to registration authorities).

Declarations by landowners: these would prevent rights being accrued in the future without the need for fencing (or, where 20 years' use has already accrued, trigger the two-year grace period for latent claims).

Character test: only land which is unenclosed, open enough for 'most' sports and pastimes and uncultivated would be eligible for registration. This is a radical departure and will reduce the scope of claims, notwithstanding that it is likely to lead to a significant short-term increase in judicial review of negative decisions by registration authorities.

Integration: land which is subject to a planning application or extant permission for development, or is designated either for development or as a Local Green Space, cannot be registered. It remains to be seen whether this will have the retrospective effect the proposals appear to suggest.

Fees: refundable charges for submitting applications which are intended to deter frivolous applicants.

Other changes needed

Although the proposals are bold in suggesting (at least for now) that any existing planning permission will trump a TVG claim (regardless of whether TVG issues were aired during its consideration by the LPA), there is nothing to assist with land blighted by current claims, or claims made before the new law comes into force. It is unlikely that the law will change before winter 2012, before which there is likely to be a spike in TVG applications. The ways in which the existing ministerial power to authorise deregistration can be used in the interim (and the need for a policy presumption in favour of deregistration in certain circumstances) is therefore a missing link that also needs to be addressed.

There are some additional changes that should be made to the TVG procedures:

  • clarification of the extent to which Town and Country Planning Act powers (e.g. 'appropriation') can be used to override TVG status without Ministerial approval;
  • shortening the onerous two-year grace period for claims to be brought once use has been interrupted;
  • perhaps providing for a "reverse CPO" where a landowner can require the local authority to acquire a registered TVG, at a compensation value that reflects the value uplift on properties in the benefiting community, maybe even allowing an additional rate on the residential properties benefiting to repay the authority.

The proposals also need to be looked at in the context of the UK Government's commitment, confirmed in the recent Natural Environment White Paper, to enable the designation of land through neighbourhood and local plans as a Local Green Space (LGS) (with equivalent effect to SSSI designation). These changes will be in force by April 2012 and it will be crucial to ensure that the net effect of the two reforms is genuinely two steps forward. There is a risk that LGS designation is seen as the final resort for failed TVG applications.

Please let us know if there are examples of the impact of the current regime or suggestions for reform that you would like to put forward. In the meantime, landowners with land that is at risk of a TVG application should be very wary, and should be making it clear that any public access to land is properly controlled to prevent the present TVG tests being met.

What Can We Do?

We can help with any representations that you wish to make on the consultation paper. We make representations on all major legal and policy developments, and regularly assist clients with presenting their issues to Westminster, Whitehall and local government.

We can undertake site and portfolio HealthChecks to identify risk, de-risking options and tactical issues or provide a fixed fee review of any application for a TVG, to establish the prospects of success.

We can assist registration authorities in navigating the present requirements, in particular providing guidance on when applications can be dealt with, without an inquiry process and mitigation of judicial review risk.

Our Experience

Lobbying: Drafting proposals for reform through the Localism Bill (on behalf of a national industry group) and making representations to the Penfold Review.

Defence: Successful defence of TVG registration to enable delivery of a town centre retail and leisure scheme on local authority land.

Registered Housing Providers: Advising on defence of TVG claims in relation to affordable housing development and mitigation and defence tactics for a housing site blighted by a post-construction TVG claim.

National Housebuilders: Advising on TVG deregistration to facilitate residential development scheme.

Local Planning Authorities: Providing TVG HealthCheck review of development sites, advice on de-risking and defensive tactics in advance of disposal or allocation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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