What qualifies as a trigger event that prevents registration of a green?
The Growth and Infrastructure Act 2013 prevents applicants from applying to register land as a green where a “trigger event” has occurred in relation to that land. Such an event occurs where land is the subject of a planning application or permission, or has been identified “for potential development” by a local authority. In such cases, the right to apply for registration remains excluded unless and until a “terminating event” occurs, in which case the land will regain its eligibility for registration as a green.
Cooper Estates Strategic Land Limited v Wiltshire Council [2018] EWHC 1704 (Admin) appears to be the first reported case on what constitutes a “trigger event’ for the purposes of the legislation. The land in question was “an irregularly, triangular shaped area”, comprising some 380m2. It was situated near a housing estate in Royal Wootton Bassett and had not been built on. The registration authority wrote to the planning authorities on receiving the application to register the land as a green. They advised that there had not been any trigger or terminating events affecting the land. So the land was duly registered as a green on the ground that local residents had used it for barbeques, street parties, cricket, football and other recreational activities for many years.
However, Core Policy 1, and Core Policy 2 in particular, of the Wiltshire Core Strategy Development Plan Document 2015 created a presumption in favour of sustainable development in the market towns named in the plan. And, because the application land lay within the boundary of one of the named towns, the landowner asked the court to quash the registration on the ground that the land had been “identified” for “potential development” in the development plan and was, as a result, ineligible for registration.
The Growth and Infrastructure Act 2013 prevents applicants from applying to register land as a green where a “trigger event” has occurred in relation to that land. Such an event occurs where land is the subject of a planning application or permission, or has been identified “for potential development” by a local authority. In such cases, the right to apply for registration remains excluded unless and until a “terminating event” occurs, in which case the land will regain its eligibility for registration as a green.
Cooper Estates Strategic Land Limited v Wiltshire Council [2018] EWHC 1704 (Admin) appears to be the first reported case on what constitutes a “trigger event’ for the purposes of the legislation. The land in question was “an irregularly, triangular shaped area”, comprising some 380m2. It was situated near a housing estate in Royal Wootton Bassett and had not been built on. The registration authority wrote to the planning authorities on receiving the application to register the land as a green. They advised that there had not been any trigger or terminating events affecting the land. So the land was duly registered as a green on the ground that local residents had used it for barbeques, street parties, cricket, football and other recreational activities for many years.
However, Core Policy 1, and Core Policy 2 in particular, of the Wiltshire Core Strategy Development Plan Document 2015 created a presumption in favour of sustainable development in the market towns named in the plan. And, because the application land lay within the boundary of one of the named towns, the landowner asked the court to quash the registration on the ground that the land had been “identified” for “potential development” in the development plan and was, as a result, ineligible for registration.
The judge upheld the landowner’s application and quashed the registration. He noted that trigger events vary by reference to the nature of the trigger. Planning applications and permissions must self-evidently relate to the land. However, development plans are generally wider in their effects than a planning application or permission and may affect an area that includes the land in question. The land was located within the defined limits of Wootton Bassett and the presumption in favour of sustainable development went further than merely identifying locations as having development potential.
The fact that the land formed only a part of the land identified for sustainable development was not a bar to the application of the legislation. “Identification” for development could be achieved in a variety of ways – by allocation, preferred areas for development, opportunity areas, reserved areas and so on. Furthermore, “potential” was a very broad concept, which was not to be equated with likelihood or probability.
There may be constraints on development within an identified area – and plan constraints that directly affect land might, on the facts, preclude “potential development”. However, it is not necessary for a development plan to allow any development in any location for the legislation to apply. And, in any event, there were no constraints that applied in this case.
The legislation had been enacted to prevent applications to register land as greens from hindering development – and the land should not have been registered as a green.
Allyson Colby is a property law consultant
A version of this article appears in the 4 August 2018 edition of EG with the headline “Triggers preventing registration as a green”
