A Village Green by any other name?

A Village Green by any other name?

January 2012

by Paul Denholm

There is doubt; it seems, in the minds of many as to what constitutes a village green. 

A recent report on the BBC highlighted the story of a development plot in the Essex village of Heybridge, where an application for a village green is thwarting attempts to build much-needed affordable housing. Source - http://www.bbc.co.uk/iplayer/episode/b019p42q/Inside_Out_East_16_01_2012/ - © [2012] BBC

The report suggested that the 'village green' in question is actually agricultural land.  The matter is unresolved.  In the meantime, the charity trying to bring forward the development claims it is losing around £15,000 each month as the site sits idle.

This is a vivid example of the way in which village green legislation is being increasingly abused to prevent development.

In December last year the Local Government Association (LGA), did not mince its words, as it fired a powerful shot across the bows of the anti-development lobby.

The LGA's contention was that there are far too many instances of local people using an application to register a strip of (sometimes very un-village green-like) land as a village green, simply as a spoiling tactic for a proposed development.

The Press Association (PA) was among a number of mainstream media to pick up on the LGA's comments.

In its story published on 18 December 2011, PA quoted David Parsons, chairman of the LGA's Environment and Housing Board thus: "Councils are keen to protect genuine village greens and community land in their neighbourhoods. However, the idea that a beach hut or car park constitutes a village green is clearly ridiculous." Source - http://www.bbc.co.uk/news/uk-politics-16243862 - © [2011] BBC

Mr Parsons went on to add: "Unfortunately, millions of pounds of taxpayers' money is currently being spent by councils processing 'village green' applications whose primary aim is to prevent development."

The pending introduction of the National Planning Policy Framework (currently in draft) is expected to shift the planning regime towards a 'presumption in favour of sustainable development' (in whatever form of words that is finally thrashed out). The introduction of such a presumption will not however diminish the potency of 'village green' applications as a means of opposing development.    

First Title comment

The balance between development and protection of open space in active use needs to be redressed. The government has been consulting via the Department for Environment, Food and Rural Affairs (Defra) on proposed changes to the law, which will hopefully improve matters.

In its consultation, Defra noted that approximately 185 village green applications had been made in 2009 and that "The volume of applications to register new greens, the character of application sites, the controversy which such applications often attract, the cost of the determination process on the parties affected, and the impact of a successful registration on the landowner, are all giving rise to increasing concern." 

Publication of the results of the consultation are awaited with great interest. A variety of changes are hoped for, including:-

  • The introduction of refundable fees for submitting applications - (currently a village green application carries no fee)
  • A proposal that a land-owner would be able to deposit a map of the land, and make a renewable declaration that any use of that land for the purposes of sports and pastimes is with the landowner's permission and is therefore not to be treated as done 'as of right'. This would prevent village green rights being accrued in the future, without the need for fencing
  • Character test: land would be eligible for registration only where it can be shown that the land is open and unenclosed in character, and recognisably similar to the common perception of a traditional green.
  • Integration with local and neighbourhood planning - this would provide immunity from registration for land subject to a planning application or extant permission for development (or marked for development, or as a local green space).

Some of the proposed changes will require primary legislation and the allocation of parliamentary time. The introduction of any changes to redress the balance, coupled with a planning system that is expected to improve the prospects of securing planning permission, is likely to cause a spike in village green applications. It is developers and Registration Authorities (local authorities) alike who will bear the brunt and expense of such a spike in village green applications. No wonder the LGA has been so unequivocal in expressing its concerns.

Arguably, there is now even more reason for developers to consider carefully the range and type of challenges they may face in the future and keep abreast of the most effective ways of mitigating those risks - including considering appropriate legal indemnity insurance.

Paul Denholm is the Senior Underwriter/Head of Planning & Solicitor at First Title Insurance plc. If you would like more information about how First Title could help you or your clients with planning and development challenges, please contact Paul on 0207 832 3117, or via email: pdenholm@firsttitle.eu.

Alternatively

If you would like more information you can:

“These comments can only be a very brief commentary on the issues raised and should not be relied on as advice. No liability is accepted for such reliance.“