Green menace

Applications to register land as town and village greens, which would protect land from future development have recently received attention in the national press as they have been used as a spoiling tactic to delay or prevent development. It is essential for landowners and developers to understand the risks of such applications as they can lead to significant delay in development and may prevent development altogether.

The process

If a significant number of local residents can prove that they have used land without force or permission for lawful sports and pastimes for a period of at least 20 years, they may succeed in having land registered as a town or village green which would prevent future development of that land. A green does not have to be the quintessential expanse of land in the middle of a village; it may be of any description.

The registration authority may choose not to register the land if it thinks that the applicant’s evidence is not strong enough. Many registration authorities will take the cautious approach of holding a public inquiry to test the evidence submitted. As there is no set timetable for dealing with applications, there may be a delay while an inquiry is arranged, possibly for many months. It is this aspect of the system which provides applicants with a spoiling tactic to prevent development, even if they do not have strong evidence to support their application.

Risks

A planning permission to develop land may have expired before an application is determined, and local and national land use policies may also change in that time meaning that if an application to register land fails and a new planning application is subsequently submitted for the same development, the use designation of the land may have changed by that time or additional considerations may have to be taken into account which could lead to a future planning application being refused.

Unfortunately for landowners and developers, there is little financial disincentive to an applicant from pursuing an application to register land as a green in an attempt to prevent its development. This is because applicants cannot have costs awarded against them, even if they are unsuccessful and even if a public inquiry is held.

During the time that an application is being considered, a developer may commence development, but there is significant risk in doing this.  It is a criminal offence to develop on a green, and as such the development may have to be demolished if the application is later successful.

A further risk to landowners and developers is that applicants may submit applications up to two years after the land has ceased to be used by residents for lawful sports and pastimes. A developer may therefore find that an application is submitted after a development has been completed, and if successful could lead to the development having to be demolished.

Safeguards

The only way landowners and developers can guarantee to stop residents from using the land as of right is to erect signs which give permission to local residents to use the land for lawful sports and pastimes.  This is only effective if 20 years use has not already accrued.  As an alternative to this, fences and other means of enclosure could be erected to prevent unauthorised access.

Ironically, an inevitable consequence of taking action to secure land is that it may provoke a reaction from residents and lead to an application. An application must be submitted within two years of the use ceasing, otherwise the opportunity to register the land as a town or village green is lost.

In the absence of action by landowners or developers to erect signs and secure land, there will be no certainty that use by residents has been permitted or ceased, and if it is ongoing this will lead to time being accrued towards establishing 20 years use and making a successful application.

Unfortunately, rural exception sites are particularly vulnerable to such applications as they are on green field sites on the edges of existing settlements. Local residents will often consider that development on land outside the settlement boundary is sacrosanct and may not understand how rural exception policy can be applied to such sites. In addition, land in these locations is often vulnerable to dog walking where care has not been taken to secure boundaries over a period of time. It is essential that any prospective developer takes care to carry out an inspection of the site to establish whether there are patterns of access to the land for this type of activity.

For more information please contact Christian Silk on 0117 917 7580. Christian is an associate in TLT’s planning and development team with experience in all aspects of planning law www.TLTsolicitors.com.

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