Councils demand urgent village green reform as regeneration projects stall

Town hall chiefs and planning officers have called on ministers to reform the regime for registering town and village greens as a matter of urgency, warning that regeneration projects are being completely stalled.

In a joint response to a government consultation, the Local Government Association and the Planning Officers Society said: “The current system is too often used by opponents of particular schemes to seek to register land that would not normally be considered ‘green’ in the usual sense of the expression, in order to stall or block development.

“Although applications to register land as a town or village green are often refused, they can have a negative impact by delaying schemes for years. The current financial climate makes the resolution of this issue more urgent as such delays can render schemes unviable, which can completely stall badly needed regeneration projects.”

The two organisations also warned that the administrative burden involved with processing applications was substantial, pointing to the experience of one county council that had run up £32,000 in legal costs for one case alone which had yet to be resolved.

The LGA and the POS said the expenditure on processing applications was unsustainable at a time when significant cuts were being made to public spending.

The consultation response added: “It is not only the outcome of village green registration that impacts upon asset management and growth plans; it is also the administrative burden they generate, at a time when finances are under strain.

“For example, in an attempt to protect its own land with future development potential, some councils have been forced to fence sites off from public use. This process is expensive both in terms of the cost to provide such fencing and signs and also in identifying and policing sites which are at risk.”

The response highlighted the impact of the registration system on one unitary authority, Pembrokeshire County Council. This authority had received five applications to register land in its ownership as a common or town/village green, which related to 2.478 ha.

The council had also lost 0.638 ha (with 1.84 ha pending decision) of land that been purchased many years before to provide social and affordable housing, employment sites and other facilities for the wider community. Pembrokeshire had also lost capital receipts estimated to be worth at least £400,000 after two applications relating to council-owned land.

“This council is concerned by the way section 15 of the Commons Registration Act 2006 has impacted on the council’s ability to utilise land purchased with public money for public benefit, and particularly the way that the statutory provisions have been interpreted by the courts (many judgments pre-dating the 2006 Act) and provide precedents for the operational consideration of the legislation,” the response said.

The LGA and the POS also said:

• They supported the government’s proposal to streamline the initial sifting of applications. “It is crucial that any streamlining process is light touch and provides registration authorities with an effective tool to sift out inappropriate and incomplete applications in an expedient manner”
• Any additional costs for the new duty to receive comments from landowners should be fully funded under the New Burdens Doctrine
• Landowners or registration authorities should be subject to the same consultation requirements as apply to a planning application. This would ensure that potential users know that they have a limited time to make an application to register the land as a green
• The government should resist the requirement to prescribe who and how the registration authority or landowner should consult
• They strongly supported proposals to introduce a character test to ensure that greens accord with the popularly held traditional character of such areas. “Town and village greens designation should only be used in exceptional cases and a character test will help ensure that the system is being used appropriately”
• It was crucial that the character test was specific and clear to prevent interpretation through expensive court cases. The proposed test of “unenclosed, open and uncultivated” would still leave scope for challenge. The LGA and the POS would be happy to help develop a fit for purpose character test
• They strongly supported government proposals which would (a) rule out making a greens registration application where a site was designated for development in a proposed or adopted local or neighbourhood plan, and (b) mean a greens registration application could not be made after an application for planning permission had been submitted in respect of a site, or on which there was statutory pre-application consultation, until planning permission had itself been refused or implemented, or had expired
• “We know of cases where a TVG application has been approved on sites where permission for development has been granted by the local planning authority and in extreme cases where development has begun”
• Where a development plan is in an advanced stage of preparation any town and village green application should be held in abeyance until the development plan process has run its course through to adoption. “Once adopted a development plan document should take precedence over a registration application”
• Fees should be charged for registering applications. “There is currently only a nominal cost to the applicant (which is for a solicitor to witness the statutory declaration that accompanies the application) and no mechanism for the applicant to bear the costs of consideration of the application”
• Registration authorities should have the flexibility to set a fee higher than the £1,000 proposed. These fees should not have to be refunded on a successful application as they would only defray some of the overall costs
• Current statutory provision together with case law makes it difficult for councils in their capacity as village green registration authorities to reject or even accept a disputed application without recourse to appointing an independent inspector and holding independent hearings, at significant costs to the local taxpayer
• At present many town and village green applications are subject to a non-statutory public inquiry, which is costly and introduces delays
• Where the registration authority is also the landowner, the cost to the taxpayer in defending sites at public inquiry are considerable both in terms of legal fees for specialist advice and officer time. The procedure should be changed so that a public inquiry “could only be initiated in exceptional circumstances”

The LGA also said it would like to see an interim measure put into effect so that councils can act immediately to reject meritless village green applications. It is therefore supporting a legislative amendment that would allow for new regulations providing local authorities with the power and flexibility to reject frivolous or vexatious applications, as well as those applications which are not accompanied by sufficient evidence.

“This is especially important as an interim measure in light of the consultation the government is currently running, as there will likely be a large number of applications made in advance of any changes the government makes,” the response argued.

The government’s consultation on town and village greens was launched by the Department for Environment, Food and Rural Affairs in July.

Defra said reforms to this “notoriously complex” area could significantly reduce the burden on local authorities.

Philip Hoult