They might have slipped out of the news recently but it remains the case that if a site is registered as a town or village green (TVG) it becomes permanently unlawful to develop it and there is no compensation for the loss of development value. Applying to register a TVG has become a standard weapon in the armoury of those seeking to prevent the development of open land. Last year, rules were introduced allowing landowners to create a cut-off point by which if an application to register has not been made, the opportunity to do so is lost. However it now seems that using these procedures could actually provoke the application by putting potential applicants on notice.
A site is potentially at risk of a TVG application if it has been used for lawful sports and pastimes (such as bird watching, dog walking and blackberry picking) for at least 20 years by a significant number of the inhabitants of any locality or of any neighbourhood within the locality. The use has to be “as of right” which means that it must have taken place without force (so not after tearing down fences) without secrecy and without permission. There have been a number of recent cases which provide valuable guidance on the interpretation of “as of right”.
One of the new measures introduced in England to help landowners are “TVG landowner statements”. A landowner may lodge a statement and map of the land with the relevant commons registration authority, which stops the clock on any village green use. There is then a 12 month period when a valid TVG application can be made, after which the land is “safe”. The danger is that such landowner statements may provoke the TVG application the landowner is trying to avoid because the registration authority has to publish the statement on a register and on its website, as well as on the site itself and to notify anyone who has asked to be notified of all such statements.
The Open Spaces Society state on their website that they have asked all commons registration authorities to notify the OSS of any statements lodged and that they will then pass the information to local OSS members to ensure they are aware of the need to make a TVG application within the 12 month period. So there is a good chance of a TVG landowner statement disturbing sleeping local dog walkers who would have been better left lying.
Burges Salmon have developed a risk assessment process to provide landowning and developer clients with a quick and cost-effective preliminary view as to potential risk and how (and whether) to counter the potential threat of a new TVG registration.