Land can be registered as a green if it has been used for lawful sports and pastimes for at least 20 years. The significance of this for landowners is that the land cannot be developed because any interference with its use or enjoyment as a green constitutes a criminal offence.
Consequently, landowners will welcome the decision in BDW Trading Ltd (t/a Barratt Homes) v Spooner [2011] EWHC B7 (QB); [2011] PLSCS 152. It suggests that there may be an important exception to this rule, which appears, until now, to have been overlooked. The court ruled that the combined effects of sections 233, 241 and 246 of the Town and Country Planning Act 1990 trump the provisions of the Commons Act 2006.
Land can be registered as a green if it has been used for lawful sports and pastimes for at least 20 years. The significance of this for landowners is that the land cannot be developed because any interference with its use or enjoyment as a green constitutes a criminal offence.
Consequently, landowners will welcome the decision in BDW Trading Ltd (t/a Barratt Homes) v Spooner [2011] EWHC B7 (QB); [2011] PLSCS 152. It suggests that there may be an important exception to this rule, which appears, until now, to have been overlooked. The court ruled that the combined effects of sections 233, 241 and 246 of the Town and Country Planning Act 1990 trump the provisions of the Commons Act 2006.
Section 233 provides that where a local authority has acquired or appropriated land for planning purposes, it can then dispose of it in order to secure the best use of it or to secure the construction of any buildings or works needed for the proper planning of the area. Section 241 enables any person to use such land in accordance with planning permission “notwithstanding anything in any enactment relating to land which is or forms part of… any town or village green” and section 246 expressly permits uses that involve the erection of buildings or other work.
There were no previous authorities as to whether the provisions of the 1990 Act or the 2006 Act should prevail. Consequently, the judge turned to the principles used in statutory interpretation for guidance.
These are that: (i) the courts will presume that parliament does not intend an implied repeal of an earlier statute; (ii) the presumption against implied repeal is stronger where modern precision drafting is used; (iii) the presumption is stronger still if the enactment said to have been repealed is weighty; and (iv) a general provision does not derogate from a special one.
The judge acknowledged that the 2006 Act has made it easier to register land as a green. However, the effects of registration have not changed since the enactment of the Commons Registration Act 1965. The 1990 Act regulates the planning system in England and Wales and section 241 specifically refers to town and village greens. By contrast, the 2006 Act is more general. It was the result of modern precision drafting and it would be strange if parliament had abrogated the effect of section 241 without saying so.
Landowners and developers will hope that they will be able to persuade local authorities to use their powers under the 1990 Act to unlock projects threatened by applications to register land as a green. However, some experts disagree with the decision. In addition, local authorities must use their powers properly or face judicial review.
Consequently, developers can expect local authorities to react cautiously to suggestions that they should compulsorily acquire land or appropriate it for development to facilitate regeneration at the expense of local rights of recreation.
Allyson Colby is a property law consultant
