Land subject to development orders to be protected from town and village green applications

It will extend statutory protections contained in the Growth and Infrastructure Act to land subject to Local Development Orders (LDOs), Neighbourhood Development Orders (NDOs) or Transport and Works Act Orders (TWAOs), according to its response to a consultation on the measures. The response also sets out the 'triggers' and 'terminating events' from which this protection will apply and when it will lapse.

A new 'catch-all' terminating event will also be introduced for the protection introduced by the Act over land identified in local or neighbourhood development plans, according to the response. This will enable a TVG application to be made in respect of the land two years after a draft plan is published for consultation. The Government will press ahead with the reforms despite concerns from respondents to the consultation that this period was not long enough, its consultation response said.

"The current corresponding terminating event when the right [to register land as a TVG] becomes exercisable again is when the draft plan is withdrawn or when the plan is adopted by the local planning authority," the response said.

"We acknowledge the concerns raised by respondents that [the new two-year 'catch-all' period] may not be long enough for all plans to reach adoption, but we consider it a reasonable period and we are working closely with the Planning Inspectorate on the time taken to prepare plans. The majority of recent plans that have reached publication stage have been adopted within this period and two years allows for amendments to be made to reflect soundness issues, where necessary," it said.

The Government noted feedback from the consultation which suggested that local authorities should be given the power to set their own triggers and termination events for the protections, depending on local experience. Although it said that it would keep the system "under review" in order to ensure that these were "set appropriately and do not result in unintended consequences for business and communities", it said that nationally-set triggers would "provide certainty for all parties".

Property disputes expert Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, agreed that locally-set time limits would lead to uncertainty and complexity for developers "for little, if any, real benefit".

"The two-year proposed limit is arguably too short," he said. "However, I think developers will agree that some time limit is required to give certainty to all stakeholders."

"The Government has, helpfully, agreed to keep the limit under review – therefore, should the two year period transpire to be too short in practice, it may be extended. I consider that, in any case, some subsequent 'clean up' reforms are and will be required to the new Act to address some existing failings. At that stage, the two-year period can be reviewed," he said.

Under the Commons Act, land can be registered as a TVG if it has been used for recreational purposes for the preceding 20 years. Once registered, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the land or interrupt the public's use or enjoyment of it.

The Growth and Infrastructure Act introduced new provisions preventing TVG applications from being lodged where an application for planning permission or a Development Consent Order has been made or granted; or when land has been allocated for development by the local authority as part of a Local or Neighbourhood Plan or in a draft of a relevant plan. In October, landowners were given an additional statutory right to allow some public use of their land without risking its future development potential.

In its response, the Government confirmed that land subject to an LDO or NDO would be protected from the 'trigger' point of when the draft order is first published for consultation. The proposals were backed by 78% of respondents in the case of LDOs, and 75% in relation to NDOs. Protection would terminate either when the draft is withdrawn or the order is adopted; or two years after the draft is published for consultation. LDOs and NDOs grant deemed planning permission for specified types of development within a defined area or specified sites.

In the case of a TWAO, protection would be triggered when the notice that an application for an order has been made is published. Terminating events include when the request for a direction for deemed planning permission is withdrawn, when it is refused and all means of challenging the refusal in legal proceedings in the UK are exhausted, and when it is given but the development has not begun within a prescribed period. TWAOs make provision for infrastructure projects, and may include provisions to apply for deemed planning permission.