In May 2019, the Court of Appeal upheld the 2018 High Court decision to quash a local authority’s registration of land as a town or village green. The Court of Appeal held that the adopted core strategy policies of the local authority gave rise to a trigger event that precluded the local authority from registering the land as a town or village green.

If an area of open space has been used (and continues to be used as of right) for an unbroken period of at least 20 years by a significant number of the inhabitants of the locality for lawful sports and pastimes, then an application may be made to the local authority to register the land as a town or village green. Once registered, the land is protected from further development.

In the first decade of the 21st Century, there were a number of examples of the Courts interpreting the meaning of a town or village green very broadly. This resulted in various areas of land such as car parks, golf courses and scrubland, being registered as town or village greens. The Government was concerned that the primary objective of many applications for registration had been to prevent development that might otherwise have been permitted through the planning system.

The Government’s view was that a decision on whether or not to protect a piece of recreational land (with identified development potential) should be decided through the planning system and not the separate process for registering town or village greens. Following a consultation of this matter, Parliament passed the Growth and Infrastructure Act 2013 which, amongst other things, inserted a new s15C into the Commons Act 2006.

Section 15(C) of the Commons Act 2006 prevents the registration of a town or village green if one or more trigger events occur. Trigger events include, where a development plan document is adopted by the local authority, that identifies the land for “potential development”.

In the case of Wiltshire Council v Cooper Estates Strategic Land Ltd, the County Council had registered a triangular area of amenity space, in an establishing area of housing, as a town or village green. The High Court quashed the local authority’s decision. The High Court held that the County Council had erred in law in validating and processing the application and in registering the town and village green, because there had been a trigger event. The Court of Appeal, in this instance, upheld the High Court’s decision to quash the registration of the town or village green.

The key issue on appeal was whether the land had been identified in a development plan for potential development. What does it take in a development plan document to identify land for potential development?

The Wiltshire Core Strategy was adopted in 2015. Its key policies included a:

• Settlement strategy identifying settlements where sustainable development would take place. The settlement of Royal Wootton Bassett, which was where this amenity space was located, was one such settlement.

• Delivery strategy containing a presumption in favour of sustainable development within defined boundaries of specific settlements.
  
  

The Court of Appeal found that it was not a requirement of a trigger event that the parcel of land be specifically identified for potential development in the core strategy; it could be included as part of a larger area identified for potential development. In this instance, the Court of Appeal found that the land had been identified by the Wiltshire Core Strategy, as having potential for development.

The Court of Appeal held that the inclusion of the land within the settlement boundary alone was not in itself sufficient for a trigger to have occurred. Suspension of the right to register a town or village green depended on the consequences, as set out in the core strategy itself, of the land being within the settlement boundary. The policies set out the Wiltshire Core Strategy clearly identified the land in question as having potential for development.

As noted by the High Court, "potential", “is a very broad concept, and is not to be qualified, and is not to be equated with likelihood or probability” of development.

Floyd LJ said that he would not exclude the possibility that other policies might trump the presumption in favour of development of sites within the settlement boundary, and thus compel a conclusion that the land was not identified for development. He commented however that the words "potential" and "development" were very wide terms. “Potential” fell a very long way short of "suitable for" and “development” included within its scope developments which did not include any new construction, such as a change of use. “On this footing, the notion, for example, that a site in a conservation area might have the potential for a change of use is not so far fetched as to cause one to understand that the settlement boundary does not identify such sites for potential development”.

The very imprecise nature of “potential development” made it imperative to interpret these words in accordance with the policy underlying the change in the law made by Parliament brought about by the addition of s15C into the Commons Act 2006. In this case, the Court of Appeal concluded that to allow a registration of a town or village green within the settlement boundary, would frustrate the broad objectives of the approved development plan. This was precisely the reason why Parliament decided that, in circumstances like the present, a town or village green should not be registered; but instead the question of development should be left to the planning system.

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