Lichfields has recently been successful in opposing the registration of land within the Darlington urban area as a town or village green under the provisions of the Commons Act 2006, not by challenging the evidence submitted, but by demonstrating that the applicant was not legally able to make the application in the first place.
The site in question comprises green open space surrounded by residential development. The basis of the application was that there had been longstanding and uninterrupted use of the application land for recreation by local residents such as to satisfy the statutory test at section 15(2) of the 2006 Act. Section 15(2) provides for registration where “(a) a significant number of the inhabitants of a locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for period of at least 20 years” and “(b) they continue to do so at the time of the application.” The application was supported by a number of evidence questionnaires and statements from local residents. Lichfields objection, was based on the assertion that the constituent parts of the test at section 15(2) had not been made out, in particular that any use by local residents had been permissive and not “as of right” by virtue of the fact that the application land has been laid out as open space for their use in conjunction with the provision of the adjacent housing at all material times.
An independent Inspector was appointed by the Council to determine the application and it appeared that this would take the form of a public inquiry. However, prior to setting an inquiry date, the Inspector raised a potentially crucial, preliminary matter in relation to the application, namely whether there had been a qualifying trigger event which precluded the application from proceeding. The Inspector noted that the basic statutory test at section 15(2) was supplemented by the introduction of section 15C by the Growth and Infrastructure Act 2013. Section 15C provides that the right to apply for registration as a town or village ceases to apply if certain “trigger events” have occurred. This includes specific triggers in respect of planning permissions or applications for a development consent order “in relation to the land” but also broad triggers which include “ a development plan document which identifies the land for potential development is adopted under section 23(2) of (3) of the Planning and Compulsory Purchase Act 2004.”
Until the High Court decision in Cooper Estates Strategic Land Limited v Wiltshire Council  there had been no reported authorities in respect of what might amount to a qualifying trigger event in relation to the broader trigger events. In the Cooper case, the local authority’s core strategy contained a policy ” that there was a “presumption in favour of sustainable development at the Principal Settlements, Market Towns, Local Services Centres, and Large Villages.” The proposed site for registration was within the defined limits of Royal Wotton Bassett being one of the market towns where there was to be the said presumption in favour of development. David Elvin QC sitting as Deputy High Court Judge held the proposed registration site was identified for potential development by virtue of being within the wider area of land earmarked for potential development within the settlement boundary. He rejected the narrower construction contended for by the local authority and considered that “potential” was a wide concept and not to be equated with likelihood or probability of development.
In May 2019 the Court of Appeal handed down its judgement in this case, upholding David Elvin QC’s decision. The Court emphasised that for decades government policy has been that development should be "plan-led", and referenced the statutory duty conferred by section 38(6) of the Planning and Compulsory Purchase Act 2004. It also acknowledged that the effect of the registration of land as a town or village green is, for practical purposes, to sterilise land for development. Land can be identified in a number of different ways. Although it must be specifically identified, this can be done (for example) by way of a line on a map (which need not be restricted to the application land alone), a verbal description, or by reference to prescribed criteria. The question should not be whether land has been identified "for development", but is whether it has been identified "for potential development". The word potential should be given its ordinary meaning.
On that basis Lichfields, together with Womble Bond Dickinson, prepared a submission to the Town and Village Green Inspector based on the Court of Appeal's judgment about what it takes in a development plan document to identify land for “potential development”, applying this to our client’s site in Darlington. This submission notes that Darlington Borough Council formally adopted its Core Strategy Development Plan Document in May 2011. Its core key diagram identifies the main urban area of Darlington and this encompasses our client’s site which lies to the east of the city centre beyond the Town Centre Fringe but to the west of the Eastern Urban Fringe. Policy CS1 records the intention for there to be “New Housing and employment development in the strategic location of the Rest of the Urban Area”. Policy CS10 provides that “Land for new housing will be allocated in the following strategic locations, in accordance with the locational strategy set out in Policy CS1, with priority for delivery being the order and timing of delivery indicated below…(a) Rest of Urban Area…”. The supporting text explains: “The main built up area but excluding the North West Urban Fringe and Eastern Fringe Area, is identified as the first priority location for new housing, and within this area, Central Park, the Town Centre Fringe and other previously developed land are the priorities.”
Our case to the Inspector was based on the contention that the combined purpose of policies CS1 and C10 was to identify those parts of Darlington Borough in which housing development was to be encouraged. We noted that our client’s site lies within the “rest of urban area” strategic location, which CS1 and CS10 indicates is the priority location to accommodate future housing development needed to maintain housing delivery across the plan period. Whilst neither policy expressly describes a “presumption in favour of sustainable development” (as was the case in Cooper Estates), for the purposes of establishing whether a “trigger event” has occurred it is not necessary to do so. The test, we asserted, was whether or not the land is identified for potential development and in this case, there are no other policies in the Core Strategy which would preclude the potential for development on our client’s site and as such, assessed against the Core Strategy as a whole, it is a parcel of land to which the presumption in favour of sustainable development applies. Finally, our submission also considered saved policies in the older adopted Local Plan and concluded that there were none which would constrain the development of the site to a sufficient degree to rebut the fact that that there was a presumption in favour of development.
In his decision letter, the Inspector found in our favour concluding that he was satisfied that there had been a “trigger event” for the purposes of section 15C of the Commons Act. The consequence of this being that the right of the applicant to make his application for town or village green status had ceased until such time as a “terminating event “ takes place. Such a “terminating event “ could include the revocation of the Core Strategy under Section 23 of the 2004 Act and the superseding of policies CS1 and C10 by another policy by virtue of Section 38(5) of that the 2004 Act. We are now working with our client to bring forward a planning application on the site whilst ensuring in the meantime that no such “terminating event” occurs.