The rights associated with Town and Village Greens (“TVGs”) trace back to English law. Legal protections for the use of land for highly localised purposes and pastimes arose from the mere fact that such use fell into custom immemorial (i.e. the origin of the use extended beyond living memory). Despite the distinction between “Town” and “Village” in the title, there is no legal differentiation between the two; indeed a TVG is just as likely to be representative of a bucolic English or Welsh idyll as it is an urban ghetto.
The Commons Registration Act 1965 (“1965 Act“) and the subsequent Commons Act 2006 (“2006 Act“) which repeals it, formalised how land may be recognised as a TVG. The 1965 Act created the first register of TVGs and offered the possibility to register new TVGs after 20 years of continuous eligible use was established.
Registration
In the absence of any ‘trigger events’, explained further below, an application can be made to register land as a TVG under section 15 of the 2006 Act when ‘a significant number of the inhabitants of any locality […] have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and continue to do so at the time of the application.’ It is not necessary to be the owner of the land in order to apply to register it as a TVG.
Registration of land as a TVG has huge consequences for developers and landowners. Any activity on TVG land that causes damage or interrupts its use as a TVG could be a criminal offence. The TVG land will also have become essentially sterile for development purposes. Since 1990 it became increasingly common to apply to register TVGs as an attempt to thwart future development proposals, seemingly opening up a loophole capable of undermining legitimate development proposals.
‘Trigger events’
The government sought to address this loophole. Among other changes aimed at facilitating local development, the Growth and Infrastructure Act 2013 (“2013 Act”) introduced a series of ‘trigger events’ which function to exclude the right of making a TVG application. These include a planning application and the publication of any draft plans identifying land for potential development, as well as the publication of similar documents during public consultations.
Each trigger event is coupled by a ‘terminating event’, such as the withdrawal of a planning application. Terminating events open up the possibility of later TVG applications, but start the clock again for the accrual of the required 20 years of continuous use. Trigger events occurring before the 2013 Act came into force in 2013 may still bite to prevent TVG applications from being successful.
A TVG application can have significant consequences on the capacity for a site to be developed, meaning that it is critical for developers to be able to clearly understand whether a trigger event exists that could negate the prospects of any potential TVG applications. The High Court recently provided additional clarity on how to identify a true trigger event in R (On the Application of Bellway Homes Ltd) v Kent County Council [2022] EWHC 2593 (Admin). In Bellway, the Court held that ‘identifying’ land for ‘potential development’ meant specifically identifying the land in a plan, for instance by verbal description or by a line on a map and the general mention of an area was insufficient to act as a valid trigger event. The Court also looked at whether it was the meaning and purpose of the local plan in question to specifically identify land for potential development. Fundamentally requiring an understanding of the Council’s policy at the time, the Court held that determining what constituted ‘potential development’ was a question of law for the Court to answer, and also that doing so involved taking a realistic rather than theoretical approach to the policies underpinning the local plan. Ultimately the Court dismissed Bellway Homes’ claim that the identification of their land in the local plan in question was a trigger event, because their land was not sufficiently identified, and the local plan did not expressly propose potential development of it. The outcome was that the Council could still determine applications to register TVGs at the site, and the local action group retained the ability to make their application. While the Bellway case was fact specific and turned on the specific ambiguities and nuances of the relevant local plan, it adds to the limited body of judicial guidance available on TVG trigger events, and indicates the approach the Court might take when interpreting development plan policies.
Deregistration
Owners of a TVG can apply for land to be released from registration. The procedure for doing this is complex, and legal advice should be sought. If a TVG proposed to be deregistered is greater than 200 square metres in area, then the application must include a proposal to register a suitable alternative site as a TVG in exchange for the release of the original land. If the TVG is less than 200 square metres, then the swapping requirement is not mandatory.
Key points
- The law surrounding TVGs is complex with many risks, including potential criminal offences.
- Once land is registered as a TVG, it is essentially sterile for development purposes.
- If an application has been made to register a TVG, careful attention should be given to whether a trigger event may arise that could scupper the application.
- TVGs can be deregistered, however this is not a given nor straightforward. It may be costly and require the acquisition of additional land.
- When purchasing land it is essential to establish if any part is vulnerable to being registered as a TVG.