Good news for developers? Court of Appeal Upholds High Court Ruling on the Registration of Town and Village Greens

13 / 06 / 2019

Introduction

In Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840), the Court of Appeal have upheld a High Court ruling which deemed a local authority’s decision to register land as a town or village green (“TVG”) unlawful. The Court did so on the grounds that the land was found to have been identified for potential development in the Council’s development plan and therefore a ‘trigger event’ had occurred under the Commons Act 2006 (“CA”). For this reason the land could not be registered as a TVG. The case is the first to examine the interpretation of the term ‘potential development’ in the context of trigger events under the CA.

The Commons Act 2006

The general rule is that members of the public can apply for land to be registered as a TVG except in circumstances where a ‘trigger event’ has occurred (Section 15C CA). The concept of trigger events was introduced by the Government as an amendment to the CA via the Growth and Infrastructure Act 2013, in a move to dismantle development restrictions that had been created as a result of registering land as TVGs. The relevant trigger events that can now preclude registration of land as a TVG are outlined in Schedule 1A CA. Such events can include, among other things, identifying the land for potential development: “…a development plan document which identifies the land for potential development is adopted…” (paragraph 4 of the table set out in Schedule 1A).

Background

In 2016, an application was submitted to Wiltshire County Council (‘the Council’) to register a piece of land as a TVG. The owner of the land, Cooper Estates (“Cooper Estates”), objected to the registration, submitting that the land formed part of the settlement boundary in the local authority’s adopted development plan. Cooper Estates argued that the land’s inclusion on the plan meant that it had been identified for potential development and as such could not be the subject of registration, relying on paragraph 4 of the table set out in Schedule 1A CA. The Council disagreed, claiming that the provisions in the development plan failed to satisfy the definition of a ‘trigger event’ under statute. The land was subsequently registered as a TVG and Cooper Estates challenged registration by judicial review. On appeal brought by the Council, the central issue turned on whether the land had been identified for ‘potential’ development.

Decision

The appeal was dismissed.

Whilst the Court of Appeal agreed that the land fell within the settlement boundary of the development plan, this does not mean by itself that the land could not be registered as a TVG. Rather, the focus should be on the consequences of including the land within that boundary, and whether this means that the land had been identified for potential development.

The Court rejected the Council’s argument that in order for the land to have been identified for potential development, the land would need to be either clearly suitable for development in the plan or be the subject of an allocation. This argument, said Lewison LJ, disregards the ordinary meaning of the word ‘potential’ and, in any event, a local authority should not have to effectively decide whether planning permission would be granted before deciding to register land as a TVG.

Ultimately the Court held that allowing the land to be registered as a TVG would frustrate the wider objectives of the development plan. Protecting recreational land ought to be achieved through the general planning system rather than relying on its registration as a TVG, in line with the underlying government policy objectives. Perhaps tellingly, the Judge commented in passing that to allow an application for land to be registered as a TVG even under a development plan in the draft stages of allocation would have incurred the very “mischief” that the change in the law was designed to prevent.

Comment

Given that this is the first reported case addressing ‘trigger events’ under the CA, the judgment is by no means established law and should therefore not be treated as such. Nonetheless, the judgment will be positive news for many developers, since registration of land as a TVG may no longer present a roadblock for development. In particular, the case demonstrates the importance for developers to review the development plan closely when assessing the viability of land, and for authorities to do so when deciding whether to register the land as a TVG. More generally, the judgment confirms that protection of recreational land should be dealt with under the usual planning process, rather than relying on its registration as a TVG. Whilst the case signposts good news for developers, whether or not the Council will appeal the decision in the Supreme Court remains to be seen. Watch this space.