In a rare piece of good news for regeneration schemes, the High Court has recently provided clarity on the development of local authority land when held for planning purposes. As the development industry seeks to kick start regeneration, a recent High Court decision has opened up the prospect of this type of land susceptible to applications for registration as a town or village green to be developed.
Jonathan Bower, Real Estate Partner, comments upon the decision in BDW Trading Limited (t/a Barratt Homes) v Spooner: "Since the Commons Act 2006 came into force, local planning authorities have struggled with the perceived conflict of the ability for town and village green status to affect developments where a local planning authority has exercised its planning powers and appropriated land. The Court has confirmed that a planning authority's decision to appropriate land for planning purposes can override town or village green status. Development opportunities, which have struggled with this issue, have been "de-risked” by the Court’s decision on this point. The appropriation process when used correctly is an important item in a local authority’s regeneration toolkit.”
Background
Barratt Homes had acquired land from Monmouthshire County Council following the grant of planning permission for a residential development. That land had been appropriated by the County Council for planning purposes prior to its disposal. Subsequently the Merton Green Action Group applied to the County Council to register the site as a village green. An inquiry was held and the Inspector recommended that the County Council register the land as a village green. This was after development of the land had commenced.
The issue to be determined in this case was whether, notwithstanding registration of the land as a village green under the Commons Act, the Council's exercise of its statutory powers could override any town and village green restrictions.
Statutory Basis
Local planning authorities have a general power to appropriate land for planning purposes under Section 122 of the Local Government Act 1972. The County Council had followed this process. A planning authority, which has acquired or appropriated land for planning purposes, is able to dispose of the land (as appears to them to be expedient) in order to secure its best use or the erection, construction or carrying out of any buildings or works appearing to be needed for the proper planning of the area. The disposal to Barratt Homes followed this statutory provision under Section 233 of the Town & Country Planning Act 1990 (the 1990 Act).
One further provision of relevance relates to the power to effectively override the protection that ordinarily applies to land which is subject to a common, town or village green, open space or allotment. This is contained in Section 241 of the 1990 Act. It states that, notwithstanding anything contained in any other statute relating to the type of land listed above which has been acquired by a local authority using its planning powers either compulsorily or by agreement, or appropriated by a local authority for planning purposes, it may be used by any person in any manner in accordance with planning permission. In other words where planning permission has been granted on any land, which is a village green previously owned by a planning authority for planning purposes, development in accordance with that permission can override the village green status.
No previous ruling existed on the application of the provisions in the 1990 Act as to whether or not local authorities could override the protection given to land by the Commons Act 2006.
Appropriation is a useful power for local authorities to override private rights over local authority owned land. The outcome of this decision extends the provisions further than dealing with overriding covenants and other third party rights under Section 237 of the 1990 Act, by applying the override to town or village green, open space, common land or allotments.
Judgment
The High Court, in reviewing the legislation and the arguments put forward by both parties, determined as follows:
- whilst the Commons Act 2006 has made it easy to effect registration of land as a town or village green, it has not changed the effect of registration from that existing previously. The old registration process was still subject to the provisions of Section 241 of the 1990 Act as set out above
- the 1990 Act provided the fundamental legislative architecture for planning use of land. This enables a local authority to exercise its planning powers to facilitate development. In exercising its powers, an authority does of course have to do so in accordance with its statutory functions and apply a public interest test as to whether or not it should exercise such powers on each occasion
- the provisions of Section 241 of the 1990 Act of "notwithstanding anything in any enactment" are wide in nature and do not just apply to any legislation passed prior to that date
- the judge was not persuaded by the argument pursued by counsel for the action group that it would be pointless to have a village green registration process if there were a general entitlement for a builder to develop simply by the reason of the grant of planning permission. That was not the case by virtue of the legislation. It is only in the limited circumstances where a local authority has appropriated land for planning purposes and subsequently granted planning permission that this overriding provision can take effect
- it is for Parliament to strike a balance between their respective public and private interests, which may be involved in cases such as these. As such, Parliament has determined that the provisions of Section 241 to allow development on land subject to a village green and as a result the land owner will be entitled to use it for any purpose for which planning permission has been granted.
Impact of Decision
Both developers and local authorities will no doubt welcome this decision, which we understand will not be appealed. Any local authority seeking to dispose of any land, particularly where it is susceptible to a possible application for town or village green status, will need to consider whether it is prudent to appropriate the land for planning purposes. Equally, any developer seeking to acquire land from a local authority will need to ensure that any risks of town or village green status are minimised by ascertaining whether or not the land has been appropriated for planning purposes.
What this decision does not address is the position relating to land owned by a local authority already subject to town, village green or open space status, which is to be disposed and developed. There are separate statutory provisions relating to dealing with land in these circumstances and, whilst there is a power for a local authority to appropriate land for planning purposes, it may be necessary to offer alternative land in exchange dependent upon relevant thresholds being met.
The process for appropriation also needs to be considered. What is essentially an internal accounting process may have significant impact on public accessibility and private rights.
The process of appropriation can be challenged by way of judicial review but the actual process leading up to a decision to appropriate is very largely unregulated. Whether such a significant interference with public and private rights should be effected with barely any opportunity for representations, debate or scrutiny may be a topic of further discussion.