First High Court ruling on town and village greens trigger event

The case of Cooper Estates Strategic Land Limited v Wiltshire Council [2018] EWHC 1704 (Admin) has seen the High Court considering what constitutes a trigger event for the purposes of Section 15C and Schedule 1A of the Commons Act 2006.

The land in question is located within Royal Wootton Bassett, and was registered as a town or village green by Wiltshire Council. Cooper Estates Strategic Land Limited, the owner of the land, challenged the registration by judicial review.

The case revolved around whether a trigger event for the purposes of the Commons Act 2006 had occurred to preclude the registration of the land as a town or village green.

Trigger events were introduced by the Growth and Infrastructure Act 2013 to remove barriers to development and investment caused by non-planning consents, such as town or village greens, and provide protection from being registered as a town or village green where certain circumstances apply. The form of trigger events set out in Schedule 1A of the Commons Act 2006 include planning applications (or permission in principle) which relate specifically to the land in question, or development plans which are generally wider in their effect.

The focus of the case was whether two key policies in the Wiltshire Core Strategy (adopted in 2015) could be considered to identify the land for potential development and therefore apply as a trigger event. The trigger event relied on was paragraph 4 of Schedule 1A "a development plan document which identifies the land for potential development is adopted under section 23(2) or (3) of the Planning and Compulsory Purchase Act 2004".

The relevant policies were:

• CP1 which provides a hierarchy of settlements and identifies what is expected in each settlement type. Royal Wootton Bassett is listed within the market towns that 'have potential for significant development';
• CP2 provides for the delivery strategy within the defined limits of the development (including market towns) and outside the defined limits of development and creates a 'presumption in favour of sustainable development' within the market towns listed in CP1.

The question before the court was whether the policies identified the land for potential development and therefore made the land ineligible for registration as a town or village green.

Following the judgement in West Kensington Estate Tenants and Residents Association v Hammersmith and Fulham LBC [2013] EWHC 2013 (Admin), identify is not a defined term and should be given its ordinary meaning. The court held that to identify the land for future development "sufficient nexus between the plan and the land" had to be created, therefore distinguishing between policies which generally encourage development without specifically identifying the land to be developed and those which do.

The land in this case falls within the defined limits of a market town listed in CP1 and is shown on the insert plan within the core strategy. Quashing the registration of the land, the court held that:

• the fact the land was identified on a plan within the boundary line of a market town was sufficient to bring it within paragraph 4 "that line is used here to define the boundary of this market town within which there is a presumption in favour of sustainable development which is sufficient to identify the land for potential development";
• further "'identified for potential development' does not mean that any application on any part of the site has to be one likely to succeed. 'Potential' is a very broad concept, is not qualified, and is not to be equated with likelihood or probability".

This case is important, as it appears to be the first reported case dealing with trigger events for the purposes of Section 15C and Schedule 1A and provides guidance to local authorities in their capacity as both registration authority for the purposes of the Commons Act 2006 and as local planning authority when considering whether a trigger event applies to preclude registration. Careful consideration will need to be given to any local policies affecting a purported town or village green and whether a presumption in favour of development applies within the relevant settlement limits. It should be noted that, as in this case, the fact that the land forms only part of the land identified for sustainable development does not preclude the application of paragraph 4. Developers will likely be pleased to note the broad concept of 'potential' meaning that sites which are subject to planning constraints are not automatically barred from the application of the protection afforded by section 15C.