Village greens and 'trigger events'

The Court of Appeal has ruled on trigger events that prevent registration of village greens. The implications for registration of greens may be far greater than some anticipated, writes Stephen Morgan.

On 16th May 2019 the Court of Appeal unanimously upheld the High Court’s quashing of the registration of a piece of open land within Royal Wootton Bassett, Wiltshire, as a village green - Wiltshire Council v Cooper Estates Strategic Land Ltd. [2019] EWCA Civ 840. The Court went so far as to hold that whether or not to protect a piece of recreational land with identified development potential should be achieved through the planning system and not by means of registration of a TVG.

Background

One of the key impediments, and opportunities for objectors to development, has been registration of land as a town or village green (TVG) pursuant to section 15 of the Commons Act 2006. Such registration effectively results in a bar on any meaningful development of the land.

The public interest in protecting town or village greens has long been recognised. However, the need for development led to concern over the implications that non-planning consents were having in terms of preventing or delaying development. The Penfold Review (2010) of non-planning consents envisaged excluding land proposed for development from the right to register as a TVG.

The legislation

However, the Growth and Infrastructure Act 2013 did not seek to ban TVG applications altogether but introduced trigger events, by inserting section 15C and Schedule 1A into the 2006 Act (from 25 April 2013). Once having occurred, a trigger event precludes TVG applications until such time as a terminating event occurs.

There are 10 categories of trigger events within the Schedule which in essence relate to the various applications for planning approval for development or identification of land within development plans. Paragraph 4, which was the subject of the appeal in this case, provides that a trigger event occurs where:

“A development plan document which identifies the land for potential development is adopted…”

The issue

The site in question lies within the designated market town of Royal Wootton Bassett, Wiltshire. It is one of the many settlements identified in the adopted Core Strategy for significant development and to which a presumption in favour of sustainable development expressly applies.The importance of that settlement, as well as others, in meeting the Council’s overall needs is clear from the Core Strategy. The application site is a small piece of grassed land that was left over following the development of a housing estate in the late 1960s and had been used as open space by the nearby residents of that estate since then.

However, the land in question was not itself identified specifically in the development plan for any purpose. The question therefore was whether its geographical location within a settlement, identified for development in the way it was in the Core Strategy, amounted to identification of the application land for potential development. The local planning authority had accepted that residential development (for one dwelling) was in principle acceptable on the land.

The developer, which sought to quash the registration of the land as a TVG, argued that land within the settlement including the application land was identified for potential development as an important part of the Core Strategy’s approach, and thus the land itself was so identified. The Registration Authority contended, however, that the terms of the Core Strategy could not amount to identification for potential development of that piece of land itself as the consequence would be that land unsuited to development (e.g. an SSSI, open space, cemetery or listed building) within the settlement would be considered to have potential for development which could not have been intended.

The outcome

Deputy High Court Judge David Elvin QC had found that a trigger event had occurred and quashed the registration. The Court of Appeal has now unanimously upheld that decision and the reasoning the Deputy Judge gave for it. In essence, the Court of Appeal agreed with the High Court that the landowner’s interpretation was consistent with the legislation and with the mischief it was intended to address.

It was held that although there must be a sufficient nexus between the plan and the land, identification could be achieved through a variety of planning methods and was not limited to an allocation nor was it necessary to have a line around an area of land. It was further held, and not disputed, that the land in question may be part of a larger identified area.

The Court of Appeal, as did the Deputy High Court Judge, identified the importance of “potential” with paragraph 4 (as well all the other trigger events relating to development plans) and crucially considered that land identified did not have to be acceptable for development nor would it necessarily be developed. The Court said that it had to be borne in mind that the words “potential” and “development” are both very wide terms.

The Court of Appeal also emphasised the policy protection given to Local Green Space which it considered was intended to provide the necessary protection to important open spaces, rather than using the TVG system.

The implications and lessons to be learnt

It has to be acknowledged that the the legislative wording is wide. Indeed the Court of Appeal held that the phrase in issue was imprecise. However, the implications that arise are significant. For Wiltshire, it means that probably about 80-90% of the inhabitants could be excluded from making an application for TVG registration, given the extent of land that falls within one of the many settlements identified in the Core Strategy for sustainable development.

A trigger event may have occurred in many other local authority areas where a development plan has a similar presumption in favour of development for existing built-up areas. Although the Court acknowledged that mere inclusion of a piece of land within a settlement did not of itself amount to identification, many development plans contain a presumption in favour of development or encouragement of development within settlements.

The Court recognised some of the potential difficulties of endorsing this approach. It did not rule out the possibility that identification of land for potential development by one policy could be contradicted by countervailing policies elsewhere in the plan. That could however result in Registration Authorities and the parties having to make a potentially difficult and uncertain trawl through a development plan every time a TVG application is being considered. Assessing whether any particular piece of land is identified for potential development may be far from straightforward.

Moreover, as the Court anticipated, local planning authorities might need to consider the implications of their existing development plan policies in terms of applications for TVGs and alter their plans. That seems a very unsatisfactory and unfortunate outcome. Applicants will need to be aware of the risk of being barred from an application for registration both in existing and emerging plans. Developers may be able to reassure themselves that the risk of a valid TVG application being able to be made, which could otherwise impede or prevent development, is slim because of the likelihood of a trigger event. That could of course even be where the proposed development site is not itself specifically identified in any existing or emerging development plan. Developers may also be able to suggest amendments to an emerging plan which would assist them in arguing that the land they wish to develop is identified for potential development. The wide interpretation of development must not be overlooked as this will include changes of use and not just built development.

Therefore, although there are clearly arguments for and against the competing interpretations, it is likely that many stakeholders would not have anticipated the interpretation that has been upheld by the Courts. It would not be surprising if the legislation is tested further in the future.

Stephen Morgan is a barrister at Landmark Chambers. He acted with Paul Brown QC for the Appellant Registration Authority. Stephen can be contacted on 020 7430 1221 or This email address is being protected from spambots. You need JavaScript enabled to view it..