Trigger events under section 15C of the Commons Act 2006

The High Court has revisited the issue of “trigger events” which prevent applications to register a village green under the Commons Act 2006. Trevor Ward analyses the judgment.

Section 15C of the Commons Act 2006 restricts the right to register land as town or village green, (“TVG”), and provides that the right to register it as a TVG ceases to apply if an event specified in the Table at Schedule 1A to the Act  has occurred in relation to the land (“a trigger event”).

In this case, the trigger event in question was that a development plan document, adopted under the provisions of the Planning and Compulsory Purchase Act 2004, had identified the land for potential development – that is the event specified under paragraph 4 of the Table.

The issue of such a trigger event had been recently considered by the Court of Appeal in the case of Wiltshire Council v Cooper Estates Strategic Land Ltd and Richard Gosnell, Royal Wotton Bassett Town Council [2019] EWCA Civ 840. In that case, the relevant land was within the settlement boundary of Royal Wotton Bassett as identified in the development plan. Two polices of the Core Strategy were material to the determination of the matter:

• Core Policy 1 (“CP1”) was the settlement strategy which identified the settlements where sustainable development would take place including Royal Wotton Bassett.
• Core Policy 2 (“CP2”) provided that within those settlements there was a presumption in favour of sustainable development.

On the basis of these policies, the Court of Appeal considered that the land subject to the registration application had been identified for potential development as being a parcel of land within the settlement boundary and in respect of which a presumption in favour of development applied. However, the Court did not rule out the possibility that in certain cases there could be policies of a development plan which indicate that a specific parcel of land would not be developable even though it was within a settlement boundary to which a presumption in favour of development applied.

The circumstances before the High Court in Bellway Homes Ltd, R (On the Application Of) v Kent County Council [2022] EWHC 2593 (Admin) (14 October 2022) were different. In this case, the land subject to the registration application was within a “green gap” identified in the relevant development plan which was the Canterbury District Local Plan. Policy OS6 of the Plan applied to such land and provided that: Policy OS6 provides:

“Policy OS6 Green Gaps

Within the Green Gaps identified on the Proposals Map (see also Insets 1,3 and 5) development will be permitted where it does not:

1. Significantly affect the open character of the Green Gap, or lead to coalescence between existing settlements;
2. Result in new isolated and obtrusive development within the Green Gap.

Proposals for open sports and recreational uses will be permitted subject to there being no overriding conflict with other policies and the wider objectives of the Plan. Any related built development should satisfy criteria (a) and (b) above and be kept to a minimum necessary to supplement the open sports and recreation uses, and be sensitively located and of a high quality design.”

Bellway Homes Ltd alleged that the Cooper Estates case should be applied and that this policy of the development plan identified the land as being for potential development and accordingly a trigger event had occurred and that the County Council could not register the land as a TVG.

The County Council appointed David Forsdick KC, as a non-statutory inspector, to consider the matter and provide a report to the Council. In applying the approach in the Cooper Estates case, Mr Forsdick concluded that the policy relied upon by Bellway Homes Ltd did not create a trigger event and that the County Council were not prevented from registering the land as a TVG.

In his report, Mr Forsdick considered that reading Policy OS6 in isolation, it could be understood as permitting development in Green Gaps meeting certain criteria and as identifying land in those Gaps for some limited forms of development. However, in accordance with Cooper Estates, it was necessary to look at the Plan as a whole. In so doing, he considered that the features in Cooper Estates, which led to the land in that case being treated as identified for potential development, were absent here. He considered that reading the Plan as a whole, the land was in a non-urban or countryside area and subject to multiple policies which constrain development. Although the policies allow some types of development subject to compliance with certain criteria, they do so by way of general application to the whole of that broad area of the District. He considered that the policies do not identify areas of land for potential development. Although Policy OS6, considered in isolation, appeared to be permissive of development, he considered that it was no different to these other, generally restrictive, policies.

The relevant committee of the County Council considered the report and adopted the recommendation and reasoning of it in deciding that a trigger event had not occurred.

Bellway Homes Ltd applied for a judicial review of that decision and sought an order quashing it.

In his judgment, Holgate J, agreed with the Inspector’s approach to the matter. Between paragraphs 27 and 39 of the judgment he referred to relevant parts of the Cooper Estates judgment and at paragraph 35 he emphasised “the importance of considering the development plan as a whole, or, at least, all relevant policies”, to ascertain whether the plan identified a parcel of land for potential development or whether other policies might except such land from that potential. In considering this the Plan must be read as a whole, taken account of any relevant policy objectives and explanatory text where appropriate.

At paragraph 74 of his judgment, Holgate J noted that “there must be a sufficient nexus between the development plan and the land in question, so that policies which are simply positive in nature, or which generally encourage certain types of development or in certain circumstances, do not themselves identify any land for potential development so as to qualify as a trigger event. The plan must identify the land for potential development which would be inhibited by an application for registration of a TVG (see the High Court in Cooper at [32]-[33]).”

Furthermore, the judgment notes that although the issue of whether land has “potential” for development has a broad meaning, that potential must be assessed on a realistic rather than theoretical approach. At paragraph 86 of the judgment, Holgate J said that: “….we are not here dealing with artificial possibilities. The policy underlying section 15C of the 2006 Act is that a conflict between the recreational use of land and its potential for development should be resolved through the planning system and not, in effect, pre-empted by an application and decision to register a TVG. But Parliament can only have intended to deal with conflicts on issues of this nature which are real. In other words, a realistic, rather than a theoretical, approach should be taken to whether a development plan identifies an area of land for potential development. That must be so, given that the effect of s.15C is to exclude the right to apply to have a TVG registered for the benefit of the inhabitants of a locality or neighbourhood.”

At paragraph 89, Holgate J distinguished the circumstances from this case to those in the Cooper Estates case, which he described as very different. He concluded at paragraph 99 that, “… I reach the firm conclusion that Policy OS6 does not identify land for potential development. Whether Policy OS6 should be treated as positive or as encouraging development in Green Gaps depends upon taking a realistic, sensible approach to the substance of the policy and its objectives. The policy is concerned to protect land which has been specifically selected for inclusion in a Green Gap because of its vulnerability to coalescence through development, even minor development associated with rural and recreational activities. It does not seek to identify all land within the Green Gaps, or any part of that land, for potential development.”

It seems that following this case, the importance of a detailed and thorough analysis of development plan policies is essential in determining any issues of relevant trigger events. The development plan must be read as a whole, including where relevant, a consideration of policy objectives and explanatory texts. In addition, the judgment appears to introduce a concept that for any land to be considered as having been identified for potential development requires a realistic as opposed to a theoretical approach. This might suggest that although the strict wording might suggest that the land could potentially be developed, a realistic approach would suggest that this would not be so. However, the difficulty may arise as to how such matters are determined. The interpretation and application of development plan policy are matters more usually dealt with by the local planning authority rather than those responsible for town and village green applications. The same is true of whether it could be said that the potential for development of a parcel of land was theoretical or realistic, indeed this is probably an even more difficult question of planning judgment. When such issues are engaged as part of the registration process, those determining the applications may have to establish a process to obtain the necessary expert advice to determine these issues including, if necessary, through the holding of a non-statutory inquiry as in the Bellway Homes case.

Trevor Ward is a barrister at Pallant Chambers.