Village green registration quashed as 'trigger event' had occurred

The ruling in favour of landowner Cooper Estates Strategic Land Ltd is the first by a court on the definition of a 'trigger event' preventing registration of a TVG according to Francis Taylor Building, the barristers' firm which appeared on behalf of Cooper Estates.

The dispute arose in relation to an "irregularly triangular shaped" piece of land of 380 square metres (Sqm) in area, adjacent to housing at Vowley View and Highfold, Royal Wootton Bassett. It was assumed that the land had belonged to the local authority until around 2006, although local residents continued to use it for recreational purposes 'as of right' until Cooper Estates locked the access gate in May 2015.

Under the 2006 Commons Act, land which has been used for recreational purposes for a 20 year period can be registered as a TVG with the local commons registration authority (CRA). Once registered, local residents have a recognised right to use that land for recreational purposes and it is an offence for the landowner to wilfully do anything on the TVG that will injure the land or interrupt the public's use or enjoyment of it.

The Commons Act was amended in 2013 to prevent TVG applications from being lodged once certain 'trigger events' have taken place. These include where an application for planning permission 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 a published draft of a Local or Neighbourhood Plan.

Local resident Richard Gosnell applied to Wiltshire Council, the CRA, to have the disputed land registered as a TVG. His application was granted by the council on 4 December 2017. Cooper Estates sought judicial review of the land registration on the basis that the land had been identified for 'potential development' by policies in the council's core strategy. It also argued that the council's decision not to hold a non-statutory inquiry before registration had been unfair.

The Wiltshire Council core strategy was adopted in 2015, meaning that it was in force at the time that Gosnell made his application. The strategy identifies a series of strategically important sites where a presumption of sustainable development will apply, "to improve the lives of all those who live and work in Wiltshire". It also sets indicative housing targets for community areas.

Judge David Elvin QC, sitting as a deputy judge of the High Court, ruled that the policies within the core strategy "provide a trigger event" in terms of the legislation. This was the case despite the fact that the disputed land was "only part of the land so identified".

"[T]he statutory purpose would be significant undermined if only applied if the plan identified the area actually the subject of the registration application (and would create an easy means to avoid [the provisions] by encouraging applicants to ensure that the land applied for did not coincide with the policy land," he said.

"[The strategy] specifically creates 'a presumption in favour of sustainable development' within the boundaries of a number of types of settlement ... which goes a stage further than merely identifying such locations as having development potential ... In my judgement there is force in these submissions," he said.

Having found in favour of Cooper Estates on this point, the judge was not required to examine its additional challenge on the lack of a non-statutory inquiry in detail. However, after dealing with it briefly, he said that he would have rejected this challenge.

Quashing the land registration, the judge ordered that the relevant entry be deleted from the commons register.

"This decision will be welcomed by landowners who are proposing to develop land which may be vulnerable to a TVG application but is identified in the Local Plan as potential development land," said planning law expert Elizabeth Nuttall of Pinsent Masons, the law firm behind Out-Law.com. "Whilst in principle the part of the land which is not identified in the Local Plan as being identified for development should proceed to be registered, the court has stated clearly that the purpose of the trigger event should not be undermined by such a technicality."

"It would appear from the decision of the court that the objectives of the Growth and Infrastructure Act 2013 which seek to promote growth and avoid unmeritorious village green applications from preventing development are being upheld by the courts," she said.