What qualifies as a trigger event, preventing registration of a green?
Following widespread concern that the town and village green system was being used to prevent development to which there were no planning objections, the Government enacted the Growth and Infrastructure Act 2013. The legislation prevents applicants from applying to register land as a green where a “trigger event” has occurred – ie where land is the subject of a planning application or permission, or has been identified for potential development by a local authority.
The question that the Court of Appeal had to consider in Wiltshire Council v Cooper Estates Strategic Land Limited [2019] EWCA Civ 840 was: what does it take to identify land for potential development in a development plan document? The land in question was a triangular shaped area, comprising some 380m2, which was situated near a housing estate on the edge of the settlement boundary in Royal Wootton Bassett. It became the subject of an application for registration in 2016 and was subsequently registered as a green on the ground that it had been used by local residents for many years – for barbecues, street parties, cricket, football and other recreational activities.
The landowner sought to have the registration quashed. It claimed that the land was ineligible for registration because it had been identified for potential development in the development plan. It cited Core Policy 1, and Core Policy 2, in particular, of the Wiltshire Core Strategy Development Plan Document 2015, which created a presumption in favour of sustainable development in the market towns named in the plan, which included Royal Wootton Bassett.
Following widespread concern that the town and village green system was being used to prevent development to which there were no planning objections, the Government enacted the Growth and Infrastructure Act 2013. The legislation prevents applicants from applying to register land as a green where a “trigger event” has occurred – ie where land is the subject of a planning application or permission, or has been identified for potential development by a local authority.
The question that the Court of Appeal had to consider in Wiltshire Council v Cooper Estates Strategic Land Limited [2019] EWCA Civ 840 was: what does it take to identify land for potential development in a development plan document? The land in question was a triangular shaped area, comprising some 380m2, which was situated near a housing estate on the edge of the settlement boundary in Royal Wootton Bassett. It became the subject of an application for registration in 2016 and was subsequently registered as a green on the ground that it had been used by local residents for many years – for barbecues, street parties, cricket, football and other recreational activities.
The landowner sought to have the registration quashed. It claimed that the land was ineligible for registration because it had been identified for potential development in the development plan. It cited Core Policy 1, and Core Policy 2, in particular, of the Wiltshire Core Strategy Development Plan Document 2015, which created a presumption in favour of sustainable development in the market towns named in the plan, which included Royal Wootton Bassett.
The High Court upheld the landowner’s application and quashed the registration. The judge ruled that the presumption in favour of sustainable development applied to the whole of the town and that a trigger event had occurred because the land in question was situated within the town limits. This caused the Open Spaces Society to suggest that “if a general designation of this kind is sufficient to trigger the exclusion of the right to apply to register a green, much of England – and soon Wales – will have been placed out of bounds to applications”.
The Council appealed against the decision and tried to persuade the Court of Appeal that the land was not identified by the development plan. It argued that, if mere inclusion within a settlement boundary were enough to suspend the right to register land as a green, the right would be removed in relation to land where there was no real risk of development. But Lord Justice Lewison, who spoke for the court, ruled that the land was identified in the development plan. Furthermore, the trigger event is not that land has been identified for development, but that it has been identified for potential development, which is a very broad concept.
The policy that underpins the legislation is that recreational land with development potential should be protected through the planning system (for example as “local green space”), and not through the town and village green regime. The planning authority had envisaged that over 1,000 new homes would be needed in Royal Wootton Bassett during the currency of the development plan and the registration of a green within the town boundaries would frustrate the broad objectives of the plan.
Allyson Colby, property law consultant
