Commercial Real Estate Articles

The economic recession has obviously reduced development activity over recent times. However, when the market returns, there is another big hurdle to overcome.  This is the Commons Act 2006, which makes wide provision for Town or Village Green applications.  

This can involve any piece of land, ranging from school playing fields to a boatyard. If a Town or Village Green application is successful, it will prevent development of the land in question.

This is a threat that landowners and developers should not ignore, as the impact on them could be significant.

Historically, it was the Commons Registration Act 1965 which put Village Greens on a statutory footing and it became possible to register land as a Village Green.  Village Greens are protected by 19th Century legislation, making it unlawful to:-

• Erect any building on them; or
• Interfere with the right of local inhabitants to indulge in sports and pastimes there.
  

The effect of that provision was that, during the 1990's, campaigners and other lobby groups began to use applications to register Town or Village Greens in order to frustrate  development.

With the advent of the Commons Act 2006, which replaces the Commons Registration Act 1965, the fear is that there is potential for this approach to gather huge momentum, at a time when there is already an increasing shortage of development opportunities.

The main provisions of the Commons Act 2006 are essentially that:-

• An application to register land as a Town or Village Green can be made after 20 years' uninterrupted use of land by local residents for lawful pastimes, carried out openly, without force and permission;
• It creates a period of grace during which an application can still be made, when such use has been brought to an end by the landowner. This will either be for two years, or for five years (if local residents ceased their use of the land before 6 April 2007);
• Any period of statutory closure (e.g. a foot and mouth outbreak) is to be disregarded in identifying the twenty year period of use.
  

If a development is commenced after an application has been submitted, or within either of the two periods of grace, a landowner or developer faces the risk that it may have to demolish any buildings constructed on the land in question, if any application is successful.

It can be very costly and time consuming to oppose a Village Green application.  Registration authorities often hold an Inquiry to investigate the evidence. Costs incurred are not recoverable.

Dealing with objections to an application, and refuting any claim, can also cause significant delay to a project and potentially prevent the development going ahead altogether, if an application is ultimately successful.

It's therefore advisable, not only for landowners and developers to be aware of this legislation, but to look ahead, and collaborate, regarding preventative measures at an early stage.

Potential evidence to refute any possible application should also be considered. In this connection, a developer acquiring a site may ideally need a vendor to enter into a contractual obligation to provide the necessary relevant local knowledge, in the event that a Village Green application is made. This is because it is unlikely, in our experience, that there are many willing volunteers, once land has been sold unconditionally in this regard.

Once land has been registered as a Town or Village Green, an application can be made to the Secretary of State to remove land from the Register, provided replacement land is offered (if over 200 square meters in area).  This provision is widely regarded as problematical and should not therefore be relied on as a solution.

An application to the High Court would have to be made to amend the Register, if it's claimed that a mistake has been made in registration.

What can you do?

There are a number of proactive steps you can consider and we can help.

• David Delaney is an Associate and heads up the Planning Law Team at Pannone LLP, solicitors based in Manchester. David has over 30 years' experience in the public and private sectors and deals with all types of planning law. David has a niche specialism in Village Green work and has had involvement in this area for approximately 18 years.
• Susan Ehlinger is both a Solicitor and Chartered Surveyor (FRICS) and has over 20 years' experience in real estate and planning matters.
• We can advise on practical steps that a landowner can take to reduce the possibility of a successful application to register land as a Village Green.
• We can suggest clauses for insertion in a contract for the sale of land obliging a vendor to co-operate regarding evidence to oppose a future application.
• We can advise in respect of objections to an application that has already been made.
• We can also assemble a team in respect of any Inquiry, and have excellent connections with leading Counsel who also specialise in this niche area.

Please contact us on 0161 909 4022 or by email to: david.delaney@pannone.co.uk or susan.ehlinger@pannone.co.uk