Town and village greens – will the gaps in the system be plugged?

Antonia Murillo looks at town and village greens in the context of planning applications and what constitutes a development plan document.

The Penfold Review of Non-Planning Consents highlighted issues which prevented, inhibited or delayed development in respect of Town and Village Greens [1]. The legislative answer was set out in the Growth and Infrastructure Act 2013 (“the 2013 Act”) and in particular Sections 14 – 17 and Schedule 4.

Questions have already been raised as to whether the protections or “trigger events” will provide the protections the draftsman intended. One of those questions being “what is a development plan document for purposes of the 2013 Act?”.

Two cases are pending in the Court of Appeal which hopefully will give some much needed guidance as to what is or is not a development plan document. The first, RWE Npower Renewables Limited v Milton Keynes Borough Council, identifies the differences between a development plan document and a supplementary planning document. Each class of document requires a different process, the former class requiring independent examination [2].

The claimant company succeeded in part on the basis that the supplementary planning document was not in accordance with guidance issued by the Secretary of State. That decision has been challenged and the Court of Appeal will now have to consider the issues afresh.

The second case which illustrates the difficulty of whether or not a plan document falls within the category of a development plan document is R (on the application of Houghton and Wyton Parish Council) v Huntingdonshire District Council [2013] EWHC 1476 (Admin). The claimant parish council challenged a decision of the district council to approve a document called “The St Ives West Urban Design Framework”.

Two grounds of challenge were made, the challenge relevant to the “trigger” events for 2013 Act was the first challenge in that the council had acted ultra vires by seeking to allocate land for a particular use or development but not by way of a development plan document. The claimant was successful but not on the development plan document challenge. However, and unusually, the deputy judge granted permission to appeal on the basis that the case had implications for a number of other cases.

Another town and village green case in the public eye highlights the difficulties of identifying whether or not a trigger event had taken place. An application to register land at The Undercroft beneath the Queen Elizabeth Hall on the Southbank as a Town and Village Green has been made. A report to the Corporate Committee of the London Borough of Lambeth sets out the arguments [3].

The town and village green application was made on 8 May with a planning application for the same site received by the council on 13 May [4]. The report confirms that solicitors acting on behalf of the South Bank Centre had disclosed an opinion from a QC stating that trigger events for the purposes of the 2013 Act had come into play. The council also obtained its own QC’s opinion confirming that a number of trigger events had taken place. The recommendation by officers to the committee is that if the making of representations had been concluded by the time of the committee and if there had been no change in the external legal advice provided to the council that the town and village green application be held to be invalid. If such a decision has been made, it would be subject to challenge by way of Judicial Review [5].

Lastly, it would appear that DCLG and DEFRA have accepted that the use of the development plan document process is more complicated than perhaps first thought and within three months of the relevant parts of the 2013 Act coming into force, DCLG and DEFRA published a joint consultation paper (on 5 July, consultation ends on 19 August) reviewing trigger and terminating events [6].

If the hope was that landowners and developers were going to have much more comfort in respect of a town and village green application being made, it is yet to be seen whether or not the 2013 Act, either in its present form or with any of the proposed amendments will in fact deliver its stated purpose.

Antonia Murillo is an associate at Bond Dickinson. She can be contacted on 0845 415 6790 or by email.

[1] The final Penfold Report was published in July 2010.

[2] See the comments of John Howell QC sitting as a Deputy High Court Judge, paragraph 7 of the judgment. He refers to the differences between supplementary planning documents and development plan documents as “labyrinthine”.

[3] The committee met on 11 July 2013 and the report shows the constitution of the council did not specifically provide a framework for how acceptance of applications made under the Commons Act 2006 should be dealt with (this is the council’s first town and village green application).

[4] The developers cannot therefore rely upon the first trigger event set out in Schedule 4 of the 2013 Act.

[5] At the time of writing, the minutes of the committee are not available.

[6] See especially paragraphs 12 to 16 of the consultation paper.