Under section 15C and para 4 of Schedule 1A of the Commons Act 2006 Act, the right to apply to register land as a town or village green is removed where “A development plan document which identifies the land for potential development is adopted…”.

In Wiltshire Council v Cooper Estates Strategic Land  Ltd. [2019] EWCA Civ 840 the question was whether the fact that land fell within the settlement boundary of a market town, which was identified for development in the local authority’s Core Strategy, amounted to the identification of the application land itself for potential development.

In the High Court, Deputy Judge David Elvin QC held that a paragraph 4 trigger event had occurred.  The Court of Appeal has now upheld that decision. Emphasising the importance of the word “potential”, the Court observed that the land identified did not have to be acceptable for development. The Court of Appeal noted the policy protection given to Local Green Space which was intended to provide the necessary protection to important open spaces, rather than using the TVG system. The Court did not, however, rule out the possibility that identification of land for potential development by one policy could be contradicted by countervailing policies elsewhere in the plan.

The decision has potentially far-reaching implications.  While much will depend upon the wording of the particular policies involved, the decision is potentially relevant in any area where the local planning authority relies upon settlement boundaries to distinguish urban areas, where development will normally be considered “sustainable”, from open countryside.  The Court of Appeal’s discussion of the potential effect of countervailing policies also opens up the possibility that Registration Authorities may have to examine the development plan more widely every time a TVG application is being considered.

A copy of the judgment can be found here.

Paul Brown QC and Stephen Morgan of Landmark Chambers acted for the Appellant Registration Authority

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