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Trigger happy?

Village green iStock 000009004124XSmall 146x219Emma Porritt and James Garbett look at additional trigger events to prevent applications to register town and village greens.

Growth and Infrastructure Act triggers

Developers and landowners have welcomed the Government's proposals under the Growth and Infrastructure Act 2013, which has amended the Commons Act 2006 to prevent registration of land as a town or village green once a 'trigger event' occurs. The right to apply for registration of the land as a TVG only becomes exercisable again if and when a corresponding 'terminating event' occurs.

In late 2013, the Government consulted on proposals to amend the existing provisions to (i) introduce a long-stop terminating event in respect of some existing trigger events, and (ii) to add further trigger events (and corresponding terminating events). It took forward all of those proposals and on 12 February 2014 brought into force The Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2014 (the Order).

This article should be read in conjunction with our 14 June 2013 WM Insight which sets out the existing nine trigger and terminating events in Schedule 1A of the Commons Act. The Order adds to or amends these events and states that, for future applications, it does not matter that a new trigger occurred prior to the making of the Order. The new triggers can not be applied retrospectively to any existing application made prior to the date of the Order, however.

The consultation paper explained that the initial Schedule of trigger events was introduced in response to an urgent need for reform and thus did not cover some of the less frequently occurring situations that can arise in neighbourhood plans. Those three matters included:

  • local development orders;
  • neighbourhood development orders;
  • orders under the Transport & Works Act 1992.

The Order's new triggers:

Trigger Event 7A – A draft local development order first published for consultation

Trigger: "a draft of a local development order under section 61A(2)(a) of the 1990 Act which would grant permission for operational development of the land is first published for consultation in accordance with section 59 of the 1990 Act."

What it relates to: a draft local development order (an order made by a local planning authority granting planning permission for the development specified in that order) in respect of the operational development of land ("any development within the meaning of the 1990 Act other than development which consists only of the making of a material change in the use of any buildings or other land").

When it occurs: on the publication of a draft local development order in respect of operational development.

How it is terminated: If:

  • the draft is withdrawn;
  • the order is adopted by resolution of the local planning authority but see Trigger Event 7B below);
  • the period of two years beginning on the day on which the document is published for consultation expires.

Trigger Event 7B – a local development order which grants permission for operational development is adopted

Trigger: "a local development order which grants permission for operational development of the land is adopted by resolution of the local planning authority and accordingly comes into force by virtue of paragraph 3 Schedule 4 A of the 1990 Act."

What it relates to: the adoption by the local planning authority of a local development order in respect of operational development of land.

When it occurs: on the resolution of the local planning authority to adopt a local development order granting permission for operational development of land.

How it is terminated: If:

  • Where the order includes a provision, which, however expressed, has the effect that permission ceases to apply on a particular day, that day passes;
  • The order is revoked;
  • A revision of the order is adopted which provides that operational development of the land in no longer permitted;
  • A direction is given under the order specifying that the permission granted does not apply in relation to the land.

Trigger Event 7C – draft neighbourhood development order which would grant permission for operational development is first published for consultation

Trigger: "a draft neighbourhood development order which would grant permission for operational development of the land is first published for consultation by a local planning authority in accordance with regulations made under paragraph 4(1) of Schedule 4B to the 1990 Act."

What it relates to: consultation undertaken by a local planning authority on a draft neighbourhood development order prepared by a parish council as designated neighbourhood forum (an order which would grant planning permission in relation to a particular neighbourhood area for development as specified in that order or for development of a class as specified in that order) in respect of operational development.

When it occurs: on the publication by a local planning authority of a draft neighbourhood development order, which would grant permission for operational development.

How it is terminated: If:

  • The draft is withdrawn or treated as withdrawn;
  • The order is made under section 61(E) of the 1990 Act;
  • The period of two years beginning with the day on which the draft is published for consultation expires.

Trigger Event 7D – a neighbourhood development order which grants permission for operational development is made

Trigger: "a neighbourhood development order which grants permission for operational development of the land is made under section 61E(4) of the 1990 Act."

What it relates to: a neighbourhood development order which grants permission for operational development made by the local planning authority. (An order is made following a referendum with more than half of those voting (being persons entitled to vote in an election of any councillors in the area covered by the neighbourhood development order), voting in favour of the order). The local planning authority must make the order as soon as reasonably practicable after the referendum.

When it occurs: following the making of a neighbourhood development order for operational development.

How it is terminated: If:

  • The order includes a provision which, however expressed, has the effect that the grant of permission ceases to apply on a particular day and that day passes;
  • The order provides that development permitted by the order must begin before the end of a specified period, that period expires without the development having been begun;
  • The order is revoked.

Trigger Event 10 – notice published under the Transport and Works Act 1992

Trigger: "a notice is published by virtue of section 6 of the Transport and Works Act 1992 that an application has been made under that section, in circumstances where the notice contains a statement that a direction for deemed planning permission in respect of land under section 90(2A) of the 1990 Act is being applied for."

What it relates to: orders authorising certain transport schemes and other types of infrastructure projects in England and Wales, where applications seeking a direction from the Secretary of State for deemed planning permission have been made.

When it occurs: once a notice has been published confirming that such an application to the Secretary of State for deemed planning permission has been made.

How it is terminated: If:

  • The application for a direction is withdrawn;
  • Where the direction is refused and all means of challenging the refusal are exhausted;
  • Where the direction is given, the period within which the development to which the direction relates must be begun expires without the development having been begun.

Two year expiry periods

In the consultation paper's introduction the government recognised the need to add certain long-stop terminating events to ensure that situations are avoided where there is no development proposed but the exclusion of TVG applications remains in place indefinitely. Therefore, the Order amends two of the existing triggers to add a long-stop date:

Trigger Event 3 – publication of a draft development plan document (identifying the land for potential development)

Trigger: "a draft development plan document which identifies the land for potential development is published for consultation in accordance with regulations under section 17(7) of the 2004 Act."

What it relates to: The publication by a local authority of a draft development plan document containing a statement which:

  • encourages the development of use of the land over a specified period;
  • allocates the land for a particular type of development or use;
  • guides the determination of planning applications in respect of the land.

When it occurs: When the draft development plan document is published by:

  • being made available for inspection at the local authority's office and website;
  • notification is sent to relevant consultation bodies.

How it is terminated: If:

  • the draft development plan document is withdrawn;
  • the draft development plan document is adopted;
  • the period of two years beginning on the day on which the document is published for consultation expires.

Trigger Event 5 – publication of a draft neighbourhood development plan (identifying the land for potential development)

Trigger: "a proposal for a neighbourhood development plan which identifies the land for potential development is published by a local planning authority for consultation in accordance with regulations under paragraph 4(1) of Schedule 4B of the 1990 Act as it applies by virtue of section 38A(3) of the 2004 Act."

What it relates to: The publication by a local authority of a draft neighbourhood development plan following submission by a parish council or designated neighbourhood forum.

When it occurs: When the draft neighbourhood development plan is published by:

  • notice on the local authority's website and such other manner as the local authority considers is likely to bring the proposal to the attention of people who live, work, or carry on business in the neighbourhood area;
  • notification is sent to those bodies initially consulted by the parish council or designated neighbourhood forum.

How it is terminated: If:

  • the draft neighbourhood development plan is withdrawn;
  • the draft development plan is adopted;
  • the period of two years beginning with the day on which the proposal is published for consultation expires.

Comment

The further trigger events seek to plug gaps in the initial schedule, and to include less commonly occurring trigger events. The additional long-stop terminating events may appease local TVG campaigners who have argued that development plans could conceivably remain in place without any actual development so as to thwart any TVG applications indefinitely.

Emma Porritt is a TVG specialist and James Garbett is a Planning Associate at Walker Morris. while James can be reached on 0113 399 1741 or This email address is being protected from spambots. You need JavaScript enabled to view it.Both regularly contribute articles and updates to reach.... ®, the free Walker Morris knowledge database and alerter service.

 

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