The last commercial property column looked at the manner in which town and village green applications create hurdles for development. One aspect of the Commons Act 2006 makes life particularly difficult for developers.

An application for a town or village green can be made if a significant number of the inhabitants of any locality… have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years (section 15). However, an application can still be made under section 15(3) if the use as of right ceased after 6 April 2007 but less than two years before the application was made. Developers are in a difficult position – pre-contract searches will show only existing greens and applications for them, not the right to register. Standard pre-contract enquiries include questions designed to elicit details of the risk of relevant use, but not all sellers are able or willing to give assurances of this nature. The net result is that local residents may claim rights over land which are hard to discover before contracts are exchanged.

It is possible for signs to be put up, advising that access is by permission, or for the land to be fenced off completely. This will not help developers in those cases where the public has already enjoyed the right to use the land for more than 20 years. The quandary for developers is whether to buy the land and wait for the two-year period of grace to expire, or to attempt to develop immediately but run the risk of an application for a town or village green. The Growth and Infrastructure Bill contains proposals to alleviate this dilemma.

The first of these applies to England alone. The proposal is that a developer could deposit a statement with the commons registration authority, which would bring to an end any period during which lawful sports and pastimes have been enjoyed as of right. If the use continues, a new period will start to run. Such notices, and the plans which must accompany them, are to be available for public inspection free of charge. Regulations not yet drafted will doubtless set out what other publicity is required.

However, if enacted, this would permit a developer to ‘stop the clock’ on sports and pastimes and start the two-year period running, before the expense of submitting a planning application. It could also be a cheaper and more flexible tool for landowners who are content to allow public access but do not wish to find that rights have been acquired over their land. The statement and map procedure will not protect developers where the public has already enjoyed 20 years use as of right. In such cases, the statement will serve to start the two-year period of grace running: residents will have two years in which to lodge their application for registration of a town or village green.

This proposal is similar to the procedure under section 31(6) of the Highways Act 1980, by which a landowner can lodge a statement and plan which will demonstrate a lack of intent to dedicate a way to the public. That procedure has been little used, but it is possible this is due more to a lack of knowledge by landowners than to a defect in the procedure itself. The bill envisages separate applications for each procedure, but it would be helpful for landowners if a system could be devised to combine both applications.

The second change is that some ‘trigger events’ will prevent an application for a town and village green being made. The right may be restored if the trigger event is followed by a terminating event. Publicity for a planning application is one such trigger event. If the planning permission is not granted and all avenues of appeal have been exhausted, or if the planning permission is granted but lapses by effluxion of time without the development taking place, the trigger will be terminated.

Additionally, as soon as the act is brought into force, transitional provisions apply. No application to register land as a town or village green may be brought where a trigger event has already taken place. But the act will have no effect on a pre-existing town or village green application that has been brought before the day the act comes into effect. An application for registration of land as a town or village green can still be made pursuant to section 15(3), where the use of the land ceased two years before the village green application. If that is followed by a trigger event, the two-year period of grace will be suspended for the life of the trigger event.

Finally, the bill provides for the first time for an application fee to be payable to apply for a town or village green. The amount will be set out in regulations but is thought to be not less than £1,000. These changes will be welcomed by developers. It can be expensive to defend an application for registration as a green. At the moment there is no charge to make such an application, which can seem one-sided to developers. Landowners may be content for their property to be used by others until it is needed. However, where one or two individuals persistently remove signs advising that access is by permission, or make gaps in fences, landowners may feel it is prudent in the long run to bar all use of the land. If enacted, the changes will put the onus on local communities to register town and village green rights in a timely manner.

Note that one of the proposed trigger events is publication of a draft development plan which identifies the land for development. Some people consider that this has gone too far in favour of development over the preservation of shared rights. Others consider that the changes do not go far enough. Roger Tetlow, senior legal adviser at the Country Land & Business Association, has said: ‘The reality is that proposals to zone land for future development are so well flagged in advance of occurring that there will still be sufficient time for a local community to submit a village green claim before a trigger event occurs.

‘Also, it’s not clear why the period of grace before a town or village green is prevented from being claimed has to be as long as two years. One year seems long enough for residents to organise an application, and a shorter period would help those trying to sell land. And the draft bill has done nothing to address the deficiency in the current law as to what type of land genuinely has the characteristics of a village green nor what constitutes "lawful sports and pastimes", which in reality amounts to little more than dog-walking and occasional blackberry picking.’

He also suggested that the declarations to negate the dedication of a right of way and the statement that land is not enjoyed as of right should be combined in order to reduce the administrative burden on landowners. The proposals in the draft bill are welcome, but some room for improvement remains.

Suzanne Gill, Pinsent Masons