Village Greens
Don't let that Village Green give you the Blues! First Title have a solution.
It is becoming more and more common for local residents to seek the registration of land as town or village greens as a means of blocking unwanted developments. Once it is registered as a town or village green the land enjoys statutory protection and cannot be developed. This is obviously a concern for developers who may have already spent a great deal of money applying for planning permissions and hiring contractors to prepare the site. In this article Kevin Mills, a senior commercial underwriter for First Title Insurance plc, explains the problems and offers his solution.
The Commons Act 2006 has increased the above risk from the developers' perspective because there is now a two year window (and in some instances a five year window) following the normal cessation of village green rights in which local inhabitants can make an application to register the land as a town or village green. If the land has been used by them to indulge in lawful pastimes for at least 20 years, and the other provisions of the Act have been satisfied, it is no longer possible for the developer to simply erect a fence around a site in order to prevent such an application from succeeding. The new legislation is designed to prevent land that should have been registered as a town or village green from losing that status forever. However, as developers struggle to meet Government targets on new houses there will inevitably be a clash between them and those who wish to preserve their open spaces.
In the leading case of Oxfordshire County Council v. Oxford City Council and another [2006] UKHL 25 (the "Trapp Grounds" case) their Lordships dispelled the myth that for land to be registered as a town or village green it must be an idyllic green in a village setting where people dance around the Maypole and drink warm beer whilst watching the local cricket team. In fact, the land can be covered in rubble and semi derelict buildings provided it can satisfy all of the criteria for registration. This is obviously a concern for developers who are increasingly looking at 'brownfield' sites in towns and cities for possible new developments. It can be argued that in heavily developed areas the local inhabitants do not have the same access to open land for recreation as people living in more rural settings and therefore derelict sites become their playgrounds.
There is perhaps a feeling that the new legislation is far too onerous and places a significant degree of risk on developers. A lawyer doing their due diligence will advise their client about the possibility of a village green registration when acquiring a site for development but the information about the history of the site may be fairly limited. On the face of it the site may be fenced off to the exclusion of third parties with no obvious rights being exercised, but this does not mean that village green rights don't exist. In this instance, does the developer acquire the site and wait for the period of grace set out in the Act to lapse or do they proceed with the development? The planning application may enable the developer to gauge the strength of feeling about their proposed development but the registration of a village green may not happen immediately after the site is earmarked for development, indeed it could be some years before the application is made. In the worst case scenario the development could be substantially complete when the local inhabitants mobilise and make their application.
Developers are increasingly turning to specialist insurance policies as a way of deflecting some of the risk and unlocking the development potential of their sites. Although the insurance will not make the risk of an application disappear it will give the developer peace of mind and enable the plots to be sold.