Ben Stansfield
Partner
Article
5
You may not have considered the risk to your land, but any land to which the public have had access "as of right" for "lawful sports and pastimes" for 20 years could potentially be designated a village green, possibly destroying any development potential.
The recent judgement of the Supreme Court in T W Logistics Ltd (Appellant) v Essex County Council & another (Respondents) [2021] UKSC 4 underlines again the risks to landowners of claims being made to register land as a town or village green on the basis of 20 years' usage. The case is a reminder that it isn't only the well-tended grassed areas which spring to mind when one thinks of a village green that are at risk. In TW Logistics the Supreme Court held that a town or village green had been established even though the land in question was part of a working port!
Other cases where village greens have been established have included an area of rocks used for the mooring of boats, partly submerged scrubland and disused quarries. Another similar risk for landowners to be aware of is of public footpaths becoming established by the public using a particular route "as of right" for at least 20 years.
The consequences of the registration of either a village green or a public right of way can be catastrophic for the development potential of land. Once registered, nothing can be built on a village green, thus eliminating any development value, unless a successful application for de-registration is made. De-registration will normally only be granted if suitable replacement land is provided. It is a complex, time-consuming and expensive process which is very uncertain as to outcome. Similarly, if public rights of way are established across a site it may be more difficult to develop.
Although obtaining a diversion order under s.257 Town and Country Planning Act 1990 is a much more straightforward process than de-registering a village green, it is still, potentially, lengthy and expensive. These dire consequences are entirely avoidable.
These are our recommendations:
The three suggestions we have made are not necessarily mutually exclusive - although one and two are clearly incompatible. There is nothing to stop you doing both one and three or two and three. Whatever steps you take, our advice is that landowners should review land which is not currently in use - especially where it has been empty for some time. Twenty years may seem like a long time but, especially where you have bought in recent years or maybe have an option over a piece of land, you may not be aware of the full history. Taking these simple steps could save you a major headache and avoid a major loss of development value.
Contact Ben Stansfield if you have any questions or would like to discuss any planning issues.
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