DEFRA consultation on the registration of new town or village greens – PLA response

 

Response On Behalf of the Property Litigation Association To DEFRA’s Consultation Document “Consultation on the registration of new town or village greens” – Consultation End Date 17th October 2011.

Introductory Comments

The Property Litigation Association has approximately 1,000 members, all of whom are solicitors in practice who spend at least 50% of their time on property litigation. They are all litigation lawyers and are spread throughout England, Wales and Scotland. This response has been drafted by members of the Law Reform Sub- Committee of the Association and approved by the main committee. In the time available it has not been possible to canvass the views of the ordinary members.

We have given our views by reference to the objectives set out in paragraph 1.3.5 of the consultation document which are stated to be:

Strike a better balance between protecting high quality green space, valued by local communities, and enabling legitimate development to occur where it is most appropriate, and Ensure that when land is registered as a green, because of the exceptional protection afforded to new greens, the land concerned really does deserve the level of protection it will get.

Our views are made where we consider that our experience as property litigators would be relevant.

Question 1

Taking account of the Government’s plans for the new local green spaces designation, do you agree that the problems identified with the present greens registration system are sufficient to justify reform – so that the “no change” option should be rejected?

Answer: The evidence in the consultation paper shows that the number of contested applications which are subsequently rejected has increased substantially from 30 for the year ending 2003 to 79 for the nine months ending in the year to September 2009. Of the applications considered in 2009, 82% were rejected. The members of the Property Litigation Association and other solicitors and barristers earn significant fees from contesting these applications. The fees are paid by the respective developers or landowners. Local Authorities also incur very significant costs involving substantial use of local authority resources arranging and policing public inquiries and alike in dealing with these applications. The increase in the number of applications and the high percentage of those rejected indicates that there is a need to change the system.

At the same time, the system will need to be streamlined to ensure that it ties in with the new local green spaces designation, and also with the Green Infrastructure Partnership being launched as part of the White Paper on the Natural Environment.

Question 2

Do you support this proposal to streamline the initial sifting of applications?

Answer: The sifting of applications should be carried out as this should result in a saving of time and expense for both the applicants and the respondents. If the applicant’s case has merit, the applicant will have the opportunity to resubmit. In our view this would save time and expense, the applicant having had the opportunity to remedy the defects identified in the sifting process.

Question 3

Do you agree that an initial determination should be made by the Registration Authority after inviting initial comments from the owner of the land affected by the application?

Answer: The concern about inviting comments from landowners is that the role of the Local Authority on receipt of an application and comment from the landowner will alter such that it is making a quasi judicial decision at this early stage of the application. It is our view that the authority should only have to assess the merits of the application in the sifting process and that inviting landowner comments at this stage could, in fact, lead to further costs and legal process being incurred and that these should be avoided

Question 4

Do you support this proposal to enable landowners to make a deposit statement and a declaration to secure protection against future applications to register land as a green?

Answer: We support this proposal. The system adopted under Section 31 of the Highways Act 1980 has been shown to work. No doubt there will be an increase in the number of applications during the two year run off period but once those have concluded, there should be in place an orderly system enabling protection of land.

Question 5

Should landowners or Registration Authorities be required to take additional steps to publicise a declaration, to ensure the potential users know that they have a limited time to make an application to register the land as green? If so, what steps do you propose?

Answer: The same procedure should be used as is used under Section 31 of the Highways Act. As proposed in paragraph 5.4.7 of the consultation paper, we support the notion that “Registration authorities would be required to keep a register of deposited maps, published on their websites, and to make declarations and maps available for inspection.”

Arrangements will need to be made to ensure that potential applicants have sufficient notice of the landowner’s declaration. This could involve an obligation on the Registration Authority to provide notice.

Question 6

Do you support a proposal to introduce a character test to ensure that the greens accord with the popularly held traditional character of such areas?

Answer: Decided cases have extended the scope of the type of land uses to which town and village green status can be given. The 1958 Royal Commission proceeded on the basis that “there are probably very few villages who will not know what they mean by “their green”, equally the assumption that it is “their green” is seldom likely to be questioned (para 369). Decided cases have extended this interpretation. If the proposals are intended to revert to the Royal Commission’s recommendation it would be appropriate to introduce a character test and not rely on piecemeal case law.

Question 7

Do you agree with the character test in Paragraph 5.5.9 above, i.e., that land must be open and unenclosed in character? Do you support the adoption of additional criteria such as those in Paragraph 5.5.11 above?

Answer: See our answer to question 6 above. We believe that additional certainty is required concerning what types of land may attract village green status.

Question 8

Do you support the proposal which would rule out making a greens registration application where a site was designated for development and proposed or adopted in a local or neighbourhood plan?

Answer: We do not support the proposal in respect of a proposed plan as potential applicants may not have had the opportunity to consider making an application before the draft plan is published. We support the proposal to rule out making an application once the local or neighbourhood plan has been adopted.

Question 9

Do you support the proposal that a greens registration application could not be made after an application for planning permission had been submitted in respect of a site, or on which there was a statutory pre-application consultation, until planning permission had itself been refused or implemented or had expired?

Answer: We do not support the proposal that no village green registration can be made once a planning application has been made in respect of a site. The adoption of such a regime would place an unfair disadvantage on prospective applicants. However, we do support a system whereby once planning permission has been granted, no village green application (or repeat application) can then be made (we believe that the same principles should apply in the context of any development proposals under the proposed Community Right to Build).

We suggest that once planning permission has been granted, all previously accrued rights on which a greens registration application may be based (including any period of alleged use of the land) should be extinguished. If planning permission which has been granted then expires, any such rights could only begin to accrue again from the date of expiry. This would prevent the scenario of minor variations to a planning consent leading to multiple greens registration applications.

The public should be notified of an application for planning permission affecting an area of land which may be subject to a greens registration application by a notice being placed on the site. This should be the responsibility of the Registration Authority. Some further thought may need to be given to ensuring that interested parties who may wish to make a greens registration application receive a proper notice. In part, this might be achieved if notice is given to the Open Spaces Society.

Question 10

Do you support this proposal to charge a fee for applications?

Answer: Yes we do as it should reduce the number of purely speculative or frivolous claims.

Question 11

If so, do you support the proposal for refunding the fee where an application is granted?

Answer: Where an application has been successful it would be appropriate to refund the application fee.

Question 12

Do you agree that the fee should be determined by the Registration Authority and that a ceiling should be set for £1,000?

Answer: This is not within the remit of the Property Litigation Association.

Question 13

Do you support the adoption of all of the proposals set out in Chapter 5.3 to 5.7 above?

Answer: Please see comments above.

Question 14

Do you support the adoption of the character test in relation to voluntary registration of land as a village green, under Section 15(8) of the 2006 Act?

Answer: If landowners wish to voluntarily register land they should be given the freedom to do so.

Views invited 15

Do you have other proposals for reform to the village green system which would help deliver the objectives set out in 1.3.5 above?

Answer: It would be appropriate to consider whether there should be a limit on the number of applications that can be made in respect of any one area of land over a defined time period. Where an application is rejected by the local authority in the initial sifting process, consideration should be given to putting a time limit, for instance, 3 months, on the submission of a further or a revised application such that if no further or revised application is made within that time period no further application covering the same area, or substantially the same area, will be permitted within a time period of, for instance, 3 years. This would prevent land being tainted by repetitive claims that are without substance. This would save costs for the local authority and give a degree of certainty to the landowner while giving the applicant a reasonable opportunity to submit a revised application.

Where there has already been a decision on the merits of a village green application and planning permission has been granted, we believe there should be an embargo on further applications relating to the same or substantially the same land.

In order to ensure that the quality of evidence submitted in support of a village green application is sufficient (this would be an advantage to applicants, landowners, the Registration Authority and any appointed Inspector), any statements should be given on oath, by way of statutory declaration or contain a statement of truth. On balance, the introduction of an adverse costs regime is not considered appropriate in the context of village green applications, as this might tend to dissuade such applications.

Views invited 16

Do you wish to see any of the reforms set out in Paragraph 5.11.1 above which refers to new legislation on greens?

Paragraph 5.11.1 – the proposed reforms dealt with:

Reassigning title to greens wrongly vested in the local authority, enabling facilities to be built on a green which would add comfort or convenience to public enjoyment, enabling managers of greens to grant consent for temporary parking, resolving questions of vehicular access ways over greens (including the regularisation of driving over existing access ways, and regulating the grant of new vehicular easements).

Answer: This is not within the remit of the Property Litigation Association.

Views invited 17

If so, which of these reforms are a priority for action, and what outcome do you seek to achieve?

Answer: This is not within the remit of the Property Litigation Association.