Clause 12 of the Growth and Infrastructure Bill amends the Commons Act 2006 (“CA 2006”) so as to allow landowners to deposit a map and statement to protect their land from registration as a town or village green, whilst allowing access to it. ·Clause 13 excludes the right to apply to register land as a town or village green under s15(1) of CA 2006 where any specified event related to the past, present or future development of land occurs. Such events are known as ‘trigger events’ and these are specified in the table set out in Sch 1A to CA 2006, which is inserted by this clause. An example of such an event is the point when an application for planning permission is first published. Sch 1A also specifies terminating events which correspond to each trigger event and cause the exclusion of the right to apply under s15(1) to lift. Clause 14 amends an existing power to allow regulations to prescribe more flexible fees in relation to applications under Part 1 of CA 2006, including applications to register land as a town or village green.

The Explanatory Notes to the Bill state in relation to these Clauses:

“154. The rationale for reform is that currently applications for registering land as a town or village green under section 15(1) of the Commons Act 2006 are considered in isolation from the planning process. This in some cases leads to development which has planning permission being delayed or prevented. One of the recommendations of the Penfold review of non-planning consents was to review the operation of the regime for registering town or village greens in order to reduce the impact of current arrangements on developments which have planning permission. Implementation of this recommendation is achieved through clause 13, which aims to stop the registration system for town or village greens being used to stop or delay planned development. The reforms will protect local communities’ ability to promote development in their areas through local and neighbourhood plan-making. The proposals also aim to reduce the financial burden on authorities in determining applications and the costs to landowners whose land is affected by applications.”

The Explanatory Notes further state (para 156) that “it is highly debatable whether the right to use land registered as a town or village green for lawful sports and pastimes is a civil right since it is a form of local public right rather than a property right”, but in any event that “since the proposed measures do not determine the existence of any recreational rights, it is considered that Article 6 is not engaged; (para 160) that “it is considered that a right to use land registered as a town or village green for lawful sports and pastimes is not a possession for the purposes of Article 1 Protocol 1 (“A1P1”) and therefore this Article is not engaged; and (para 161) that, if the right to use a town or village green for lawful sports and pastimes were a possession, the Government considers that A1P1 would be “unlikely to be engaged”, since the right to apply for land to be registered as a town or village green “is not an existing possession”, but is “merely the right to apply for a future possession”, and that it is also considered that, in removing the right to apply for town or village green registration in certain circumstances, there is no interference with any claim since the legislation will affect future rather than existing applications

In R (Barnsley MBC) v SoS for CLG [2012] EWHC 1366 (Admin), Judgment of Foskett J on 24 May 2012, the Council made a CPO in respect of land in its area registered as a Village Green.  The Council relied upon s121 of LGA 1972 and s2 of LGA 2000.  The SoS took the view, however, that these provisions did not provide an enabling power.  He regarded the CPO as invalid, and declined to confirm it.  The Council brought judicial review proceedings to challenge his view.  The Judge agreed with the SoS.

The Council could acquire land by agreement under s120 of LGA 1972 for the purposes of the benefit, improvement or development of their area.  That was not, however, enough for a CPO under s121, as s121(2)(a) made clear.  The question therefore was whether s2 of LGA 2000 could be invoked.  Foskett J concluded that s2 was not intended to alter the LGA 1972 situation in relation to CPOs.