Change to village green laws will prevent abusive registrations, expert says

Its draft Growth and Infrastructure Bill contains provisions which will prevent an application for TVG status being brought in relation to land which is subject to a planning application, or which has been identified for potential development by a local authority. The changes are expected to come into force by next summer.

The Government said that since 2000 annual TVG registration numbers had risen to nearly 200 from a historical rate of around 60 per year. As in many cases the local authority whose job it was to assess the application also had an interest in the land in question, many of those applications had to be decided by a court at considerable expense, it said.

Environment Secretary Owen Paterson said that none of the over 4,000 existing TVGs would be put at risk by the changes.

"Town and village greens are cherished community spaces, and it's absolutely right they continue to have the strongest protection," he said. "Yet the system can be abused to stop developments like affordable housing from being built. We're stamping down on the abuse of this law that can effectively shut local communities out of deciding what development is right for them."

Currently a piece of land which has been used for recreational purposes for the preceding 20 years can be registered as a village green, regardless of whether a planning application has been submitted or planning permission granted. Once land has been registered as a TVG, 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 of enjoyment of it.

The Government said that the existing law could result in delays to building work that had been granted planning permission, or that was undergoing community consultation, while the application was being considered. In some cases, such as at Saham Toney in Norfolk, houses could be built, bought and even lived in before the application was made. The Government said that Saham Toney residents and the developer, Hastoe Group, were still awaiting an outcome two and a half years after the TVG application was lodged.

Planning law expert Rebecca Warren of Pinsent Masons, the law firm behind Out-Law.com, said that last minute TVG applications were one of the "NIMBY ['not in my backyard'] tools of the trade for impeding development". Changing the law would provide more certainty for developers, she said.

"The change will mean that from the date a site is identified for development in a Local Plan document, whether adopted or a consultation draft, a TVG application cannot be lodged," she said. "Last minute TVG applications, often after permission is granted, create delay, increase the cost of promotion and blight sites. Now an allocation in a Local Plan will create a form of safeguard, as will the grant of planning permission."

However, she pointed out that those sites where TVG applications had been lodged before the change came into force would still be subject to the previous regime.

The draft Bill will prevent TVG applications from being lodged where an application for planning permission has been made or granted, and when land has been allocated for development by the local authority as part of a Local or Neighbourhood Plan. The change will also apply where a draft of a relevant Plan has been published.

In addition, landowners who wish to allow some public use of their land without risking its future development potential will now be able to do so. Currently a landowner must challenge or take steps to prevent the land's public use in order to be able to prevent users from claiming 20 years' recreational use 'as of right'. The draft Bill will allow landowners to deposit a 'landowner's statement' detailing their intentions with the commons registration authority.

"Similar mechanisms already exist in other walks of law: landowners can register 'light obstruction notices' to prevent neighbouring buildings from acquiring prescriptive rights to light, and can deposit declarations to prevent the acquisition of public rights of way across their land," property law expert Allyson Colby of Pinsent Masons explained. "Landowners will welcome the change - some may even be prepared to allow the public to use land for recreation, instead of barring the public from it in order to keep it available for future development."