Unintended consequence of town and village green registration in Wales addressed in new Act

New rights for affected owners

Today under the Commons Act 2006, anyone can apply to have land registered as a town or village green if it has been used by local people for recreation ‘as of right’ (i.e. without permission, force or secrecy) for at least 20 years. While it is recognised that communities value local areas of land, at times an application for a town or village green has been used to prevent development from taking place. Even when they are not successful, the process results in delays, costs and great uncertainty for everyone.

The Planning (Wales) Act 2015 now includes provisions to give owners affected in such circumstances a right to end use of their land as of right subject to certain exclusions. These provisions are not yet in force but in time will allow the landowner to deposit a statement with the commons authority to end the use of land as of right. It will also mean that the right to apply to register a town or village green will be removed if there has been a trigger event, for example, the submission of a planning application. However, the restriction will also be removed through a termination event, for example, the lapse of planning permission.

Michael Lawley, Chairman of Cooke & Arkwright commented, “Unfortunately, an unintended consequence of the 2006 Act was the ability of people to use the registration process as a reason to delay, thwart or bring pressure to bear on landowners. Such situations invariably proved to be vexatious. The new Act will help rebalance the position.”

The current consultation seeks views on new regulations to support the Act. In summary, the Welsh Government is consulting on:

• The information that should be included in a statement, including the requirement for a signed declaration;
• How the commons authority should publicise such a statement - and it is proposed that this will be by notice through their website, on or near the land to which the statement relates for a minimum period of 60 days and by letter to anyone who has previously expressed an interest in the land to the commons authority;
• The removal of entries from the register where information submitted is known to be incorrect and using a 28 days period for the landowner to address any errors; and,
• Not setting a fee in regulation but to instead allow the commons authority to charge its own ‘reasonable fee’;
• The maintenance of a register on the local authority’s website in addition to paper records.

It is worth noting that although the submission of a statement brings to an end any period during which persons have undertaken sports and pastimes on the land in question as of right, there remains a two year period of grace within which an application to register the land as a town or village green can be made to the commons registration authority. This two year period will begin from the date included in the acknowledgment letter sent by commons registration authorities on receipt of the statement.

Helen Ashby-Ridgway, Associate Director at Lichfields planning and development consultancy, considers the changes will be positive, “Once in force the changes will provide greater certainty for everyone involved through a more transparent process. Landowners will need to be proactive and should consider the implications as part of their wider planning and development strategies.”

Julian Golunski, Consultant in Land Agency at Cooke & Arkwright added, “These changes will introduce a clear mechanism for landowners to manage land potentially subject to town or village green applications. Vigilance will still be needed to monitor land activity in a similar way that they should already be applying to the risks of claims of new public rights of way.”

Helen Ashby-Ridgway said, “The consultation does not give any indication of when the provisions of the Act will come into force but we anticipate that this will be in spring/summer of 2018.”

The consultation runs until 2 February 2018.