The Growth and Infrastructure Act and TVGs

Village green iStock 000009004124XSmall 146x219Just how effective will the Growth and Infrastructure Act 2013 be protecting against town and village green registration? Antonia Murillo reports.

A town and village green (TVG) shouldn’t be a contentious issue. However, one only need look at the reported case law to see not only has the issue been contentious, but also many cases have been decided by the House of Lords or latterly by the Supreme Court [1].

In most of the reported cases, the applications to register land as a TVG was a spoiler and considered a cheap option to prevent a development rather than challenging the validity of a planning permission. Many of the TVG applications led to further challenges by way of judicial review both by TVG applicants and by land owners in an attempt to challenge the decisions of Commons Registration Authorities (CRAs) be they to register or not to register land as a TVG.

Applications to register land as TVG were generally made under the Commons Registration Act 1965, some of which found their way to the House of Lords [2]. The Commons Act 2006 (the 2006 Act) certainly made the application process easier; application forms could be found on the DEFRA website or the Open Spaces Society website both of which gave step by step help to register land as a TVG (in fact DEFRA and the Open Spaces Society still give step by step advice).

How we got here from there – reviews of TVG applications and the 2006 Act

In April 2005 DEFRA commissioned a research survey of TVG applications within England and Wales; one of the objectives was to identify and analyse conflicts of interest occurring in relation to the registration of TVGs. This survey was undertaken before the 2006 Act was on the statute books and two full years before Section 15 of the 2006 Act came into force; even at this stage, TVG registration was identified as a potential conflict of interest.

The system of TVG applications was made easier under the 2006 Act, numbers of TVG applications multiplied and the means of determining those applications remained long winded, leading to delay. The effect of the 2006 Act of itself was not recognised by many as an increased risk, including some insurers, some of whom during the course of 2007 were suggesting insurance need only be in place for three months, as for JR insurance, rather than the two or five year period for a TVG claim allowed under the 2006 Act.

DEFRA commissioned a further survey in March 2009 which was followed by the Penfold Review of Non Planning Consents in November 2011. Penfold identified several breaks on development, one being TVG applications and registration and in large part suggested protections now set out in the Growth and Infrastructure Act 2013.

The Growth And Infrastructure Act 2013 – what are the protections?

Section 16 of the 2013 Act came into force on 25 April. There are nine trigger events which relate to the development of land which occur within the planning system. Where such an event has occurred in relation to land, the right to make an application to register that land as TVG is excluded [3].

Some examples of trigger events include:

  • The first publication of an application for planning permission for the land, which includes the grant of permission on appeal;
  • The publication by the Local Planning Authority of a draft local plan or neighbourhood plan which identifies the land for potential development;
  • The adoption or making by the Local Planning Authority of a local plan or neighbourhood plan which identifies the land for potential development;
  • A proposed application for development consent under the Nationally Significant Infrastructure project regime is first publicised by the applicant.

Every trigger event has a corresponding “terminating event”. If a terminating event occurs, the right to apply for TVG registration may again be exercised. A terminating event in respect of the four examples above of trigger events include:

  • The planning application is withdrawn or refused and all means of challenging the refusal are exhausted;
  • The document (i.e. a draft local plan) is withdrawn [4];
  • The application for development consent is withdrawn or refused with all means of challenging the refusal having been exhausted.

Section 15 of the 2013 Act, (which is not yet in force and at present there is no planned date to bring it into force) will also give protection to a landowner who deposits a statement and plan with the CRA, the effect of which will bring to an end any period of “use as of right” for lawful sports and pastimes. Where a period of 20 years of “use as of right” has already occurred by the time the deposit and map takes place, an application for registration as TVG can still be made within the relevant period from the date of the deposit. In England, the relevant period will be reduced from two years to one year.

Will the protections work?

  • All the TVG applications made before 25 April this year should continue to be determined by the CRAs.
  • There are no trigger events in relation to permitted development rights, therefore the exclusions will not apply to such land unless a trigger event has occurred in relation to that land for another reason.
  • What is a development plan document for the purposes of the 2013 Act? The procedure governing the adoption of development plan documents is complex and subject to challenge [5].
  • The protections may well work but are by no means straightforward. What if the local planning authority doesn’t validate a planning application as soon as it should, thus delaying the advert/ notification procedure of that planning application and an application to register the land as TVG is received in the meantime? What happens if a draft development plan is challenged, how will the CRAs act? Despite the protections, delays will still be inevitable while the new TVG system is first applied by CRAs. For the present, TVGs will remain a contentious issue.

Antonia Murillo is an Associate at Bond Dickinson. She can be contacted on 0191 279 9024 or by This email address is being protected from spambots. You need JavaScript enabled to view it..

[1]  See cases of R v Oxfordshire County Council and others exparte Sunningwell Parish Council (House of Lords 24 June 1999) to Lewis v Redcar and Cleveland Borough Council (Supreme Court 2010) to the case of Newhaven Port Properties Limited v East Sussex County Council and Newhaven Town Council (Court of Appeal 2013). In addition, the claimants in the case of Barkas v North Yorkshire County Council [2012] EWCA Civ 1373 have just won permission to appeal to the Supreme Court.

[2]  Oxford County Council v Oxford City Council and Another (House of Lords 2006) (this is known as the Trap Grounds case where the initial application to register land as Town and Village Green was made on 21 June 2002).

[3]  The full list of trigger events is set out in the first column of Schedule 1A of the 2006 Act.

[4]  See the Manydown Company Limited v Basingstoke and Deane Borough Council 2012.

[5]  See RWE Npower Renewables Limited v Milton Keynes Borough Council and Another 14 April 2013.