Can a Town and Village Green application impede development of land identified for "potential development"?

4 minute read
24 May 2019

The Court of Appeal (CA) has recently upheld the High Court's decision, in Wiltshire Council & Others v Cooper Estates Strategic Land Ltd, to reject the designation of land as a Town and Village Green (TVG). The CA reviewed the facts in detail and arrived at the conclusion that the land had 'potential' for development and therefore met the criteria for one of the 'trigger events' contained within the Commons Act 2006.

The TVG application

Section 15 of the Commons Act 2006 ("the Act") grants members of the public the right to apply for land to be registered as a Town or Village Green (TVG) unless excluded as a "trigger event". Wiltshire County Council ("the Council") received such an application to register a triangular area in Royal Wootton Bassett. The land was owned by Cooper Estates Strategic Land Limited, who opposed the TVG application in reliance on the trigger event defined at paragraph 4 of Schedule 1A of the Act - "A development plan document which identifies the land for potential development is adopted…" They argued that the land had been identified for "potential development" in a published development plan document. The Council was advised by its officers to reject the objection on the basis that the provisions of the development plan document were insufficient to satisfy the definition of a trigger event. The Council proceeded to register the land as a TVG.

Has the land been identified for "potential development"?

The key issue on appeal was whether the land had been identified for "potential development". The Court stated it was undisputed that it is "…not a requirement of the trigger event that only the land in question is identified. It may be part of a larger identified area". The parties were not in dispute as to the meaning of the word "identify", but the question remained identified for what?

The relevant trigger event is that the land has been identified for "potential development" and not just "development" - the Court agreed that "potential" is a very "broad concept, is not qualified, and is not to be equated with likelihood or probability".

The Court went on to consider the Council's argument - whether one could see from the development plan document that the development of the land was acceptable or that the land was suitable for development, but noting that the question was not whether the land was suitable for development but whether it was suitable for "potential development". In interpreting the phrase, the Court confirmed it is important to "interpret it in accordance with the policy underlying the change in law". The judgment continues, "That policy…was that whether or not to protect a piece of recreational land with identified development potential should be achieved through the planning system and not by means of a TVG."

What the court held

Developers will be delighted to hear that the judgment indicates the intention of the Court of Appeal to implement the spirit of the revisions to the Act via the Growth and Infrastructure Act 2013, such that TVG registration does not frustrate development and that the public open space needs of the locality can be met through planning control.

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