Court of Appeal decision gives hope to property developers
There has been a recent case which will provide a sigh of relief to property developers across the country. In Wiltshire County Council v Cooper Estates Strategic Land Ltd  the Court of Appeal upheld the High Court’s ruling that deemed Wiltshire County Council’s decision to register a piece of land as a town or village green as unlawful.
Under the Commons Act 2006 the public can apply to the Council to register land as a town or village green if the land has been used by local people for recreation ‘as a right’ (i.e. without permission, force or secrecy) for at least 20 years. However, the Growth and Infrastructure Act 2013 introduced some amendments to the Commons Act with the intention to remove some of the hurdles in place that restrict development. The amendments incorporated certain circumstances, so-called “trigger events” which would stop land being able to be registered as a town or village green.
In the Wiltshire case an application was made in 2016 to register a piece of land in Royal Wootton Bassett as a town or village green. The land was described as being an amenity space in an establishing area of housing, or at least it was so until the erection of fencing and a gate, which had been installed by the owner of the land, Cooper Estates. Cooper Estates objected to the registration, arguing that the land was part of the settlement boundary and within the local authorities’ adopted development plan. The inclusion of land within the local development plan meant that it had been earmarked for potential development which would be a trigger event under the Commons Act and therefore should not be subject to registration. The Council disagreed and registered the land as a town or village green. Cooper Estates challenged the registration through a judicial review.
Eventually the matter went before the Court of Appeal where the Court held that inclusion of the land as a town or village green would frustrate the wider objectives of the local development plan. The Council, in deciding whether or not to register land as a town or village green, would not have to consider the likelihood of the land obtaining a planning consent for development, but simply whether the registration could potentially frustrate the future development of the land.
This is the first case dealing with the introduction of trigger events and should be treated with some caution, but it does indicate that town or village green registrations may not be the red light to development that they once were.
Oliver Ray is a solicitor specialising in commercial property law in the Property department at Barker Gotelee Solicitors in Suffolk.