I am grateful to our property colleagues Nick Harris and Anna Aldous for the following post;
Whether they hold property in central urban areas or on sprawling rural campuses, our clients are often faced with the public accessing their land for recreational use, which gives rise to the risk of the land being registered as town and village green (TVG). In short, recreational use of land for at least 20 years 'as of right' (which is to say without force, secrecy or permission) can lead to such registration. This is a problem as, once land has been accepted as constituting TVG, to all intents and purposes it is rendered incapable of development, short of the use of convoluted CPO powers. And, as the Southbank Centre recently found with its attempt to redevelop a skate park to fund the refurbishment of its Festival Wing, recreational use of even the most urban of spaces can potentially give rise to such protected status.
However, provisions of the new Growth and Infrastructure Act 2013 could make the grass (or even lack of it) a lot greener for landowners.
Section 16 of the Act now excludes the right to apply for land to be registered as a TVG following certain "trigger events", which include first publicity for a planning application, development plan or neighbourhood development plan. Assuming planning consent is granted and the land then developed in accordance with the consent and within the prescribed period, the risk of developments being derailed by a strategic TVG application has been extensively curtailed. The right to apply to register a TVG can take effect again if prescribed "terminating events" occur, such as the withdrawal or refusal of planning applications where all means of challenging refusal have been exhausted. Nonetheless, the benefit for landowners is clear- in the Government's words: "The Growth and Infrastructure Act will help…by introducing a comprehensive series of practical measures to reduce confusing and overlapping red tape that delays and discourages business investment, housing development, new infrastructure and job creation".
Of course, there may be a risk that Section 16 provokes a rash of new applications for registration as a 'pre-emptive strike' against future development, so landowners may not be able to breathe easy just yet. Under separate provisions of the Act, landowners will be able to take statutory steps to prevent use being deemed 'as of right' by periodically lodging a statement and plan with the commons registration authority. However, those provisions have not yet been brought into force, so it will be interesting to what reaction the 'live' parts of the Act receive over coming months.
We will of course keep you updated as to when the remainder of the provisions come into force but if you have any queries in the meantime, please get in touch