The Growth and Infrastructure Act 2013 (“the 2013 Act”) received Royal Assent on 25 April 2013 and brought with it some immediate changes to the town and village green (“TVG”) registration process, with further, more minor changes, to come. The changes are designed to prevent “spoiler” applications being submitted with the aim of frustrating development. However, this does not mean that it will necessarily be all plain sailing for developers from hereon. We consider the implications below.
Provisions now in force
From 25 April 2013 an application to register land as TVG can no longer be made if any of the following “trigger events” have occurred:
- An application for full or outline planning permission has been publicised as required by Article 13 of the Development Management Procedure Order 2010. Depending upon the type of application, this could range from as little as serving notice on adjoining owners and occupiers to site notices and notices in newspapers as well as publishing the information on the local planning authority’s (“LPA’s”) website. Any application which was submitted before 25 April will be protected from a TVG claim once it has been publicised, whether or not that occurred before 25 April 2013.
- The site is identified for potential development in a draft or adopted local plan. This will include sites identified in “saved policies” made under the previous local plan regime. The draft plan must have been published for consultation. Both the consultation and adoption procedures must have been in accordance with the requirements of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”).
- The site was identified for development in an “old-style” development plan and the relevant policy has been “saved” as part of the 2004 Act transitional provisions.
- The site is identified for development in an adopted or draft neighbourhood plan which has been published for consultation.
- A proposed application or an application for a development consent order for a Nationally Significant Infrastructure Project (“NSIP”) has been publicised in accordance with the requirements of the Planning Act 2008.
Points to watch
- Pre-application consultation for any proposal other than a NSIP will not count as publicising the application. In the case of all non-NSIP development the application must have been submitted. Whilst section 122 of the Localism Act 2011, which introduces a mandatory requirement for pre-application consultation for prescribed developments, has yet to be brought into force, a number of LPAs do encourage this and it is seen as good practice to do so. However, the danger is that pre-application consultation could itself be enough to trigger an application to register land as TVG from local residents. If an application to register is made before the application for planning permission is submitted and publicised, then the TVG procedure will kick in, potentially delaying, if not finally preventing, development.
- Not all local plans adopted after 2004 will have been adopted in accordance with requirements of the 2004 Act, particularly if work on them was far advanced when the 2004 Act came into force. If this is the case then unless the relevant policies have been “saved” in accordance with the transitional provisions in the 2004 Act or a site has been identified for development in a subsequent draft local plan which has been published for consultation, it will not be protected from an application to register it as TVG.
- The trigger events will not prevent a TVG application being made for all time, they merely have the potential to stop the clock running. If a planning application is withdrawn or refused and all legal challenges are exhausted, if the site allocation is dropped or the development plan is revoked or replaced and the allocation is not carried forward or if saved policies from an old style plan cease to be saved and the allocation is not carried forward then the site could again be vulnerable to a TVG application. If any of those events occur such that the site is no longer protected from the possibility of a TVG claim, then any interruption to the calculation of the 20 year use period is to be ignored.
- Section 16 of the 2013 Act, which inserts the trigger event provisions into the Commons Act 2006, enables the Secretary of State to make an order setting out when a trigger event can be regarded as having occurred, amending or removing the specified trigger and termination events or introducing or specifying additional trigger or terminating events. This empowers the Secretary of State to make changes in the future without recourse to further primary legislation.
Other changes under the 2013 Act
- The period for making a TVG application in England is being reduced to 1 year from when the TVG use ceased. It will remain 2 years in Wales. This will be introduced via a commencement order so the date when it will take effect is unknown at present
- It will be possible for a landowner to deposit with the TVG Registration Authority (usually the County Council) a map and statement which declares that no or only indentified land is TVG. This procedure is similar to that which currently exits under section 31 of the Highways Act 1980 and is most commonly used to prevent rights of way claims being made. Regulations are to be made prescribing the form of the statement. Section 17 of the 2013 Act contemplates that a joint TVG and Highways Act statement could be submitted. Although no length of time is specified for how long such a declaration will last, the 2013 Act provides that in England highways declarations deposited in accordance with section 31 of the Highways Act will now last for 20 years (they will remain 10 years in Wales) so it is to be expected that the 20 year period will also apply to TVGs. Regulations have still to be made and this section will be introduced via a commencement order so the date when it will take effect is not yet known.
The above is only a summary of the legislation and is not intended to be a comprehensive guide to what can be a complex area of the law. If you need any advice or assistance in connection with potential or actual TVG claims please contact Neil Baker, Karen Howe or Caroline Waller of our Planning & Environmental Team.