The Commons Act 2006 (“the 2006 Act”) provides a right to apply for the registration of a town or village green (“TVG”) in relation to land which has been used as of right for “lawful sports and pastimes” for at least 20 years by a significant number of inhabitants of any locality, or neighbourhood within a locality. One effect of the statutory protection given to a TVG is that most forms of development or precluded. Because of concerns that the TVG registration system was being used to prevent development proposed or approved through the planning system, the Growth and Infrastructure Act 2013 (“the 2013 Act”) amended the 2006 Act so as to disapply the right to apply to register land as a TVG if one of a number of “trigger events” takes place. One such event is where a development plan document identifies the land in question “for potential development”.
The central issue before Holgate J. in R (BELLWAY HOMES LIMITED) v KENT COUNTY COUNCIL (2022) EWHC 2593 (Admin) was whether land included in a “Green Gap” to which Policy OS6 of the Canterbury District Local Plan (“CDLP”) applies was to be treated as having been identified by that Plan for potential development.
Holgate J. held that, properly understood in the context of its accompanying explanatory text, Policy OS6, whether read as part of the CDLP as a whole or in isolation did not identify land in the Green Gap for potential development.