FOR INFORMATION ONLY
BOROUGH OF POOLE
ENVIRONMENT OVERVIEW & SCRUTINY COMMITTEE
26th NOVEMBER 2009
JOINT REPORT OF THE HEAD OF ENVIRONMENTAL AND CONSUMER
PROTECTION SERVICES & LEGAL AND DEMOCRATIC SERVICES
APPLICATIONS FOR TOWN AND VILLAGE GREENS
URGENT ITEM - NOT PART OF THE PUBLISHED FORWARD PLAN
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Purpose and Policy Context
1.1
The introduction of the Commons Act 2006 has proved a catalyst for the
submission of Town and Village Green (TVG) applications within Poole, and
elsewhere in the Country. Two such applications have been received by the
Council, and there is anecdotal evidence to suggest that more applications
could be on the way.
1.2
There are staffing and financial implications to administering these
applications, and increased financial risks should such applications be referred
to Judicial Review. There are also financial risks associated with any planned
improvement and development works on Council owned and/or controlled land
that may be subject to such applications.
1.3
The Council will administer any applications in accordance with legal
requirements but this is a new area for Poole and this report sets out some of
the implications and choices available to the Council. The Report gives
members of the Committee the opportunity to receive information about the
processes so far and to discuss the situation generally.
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Decision Required
2.1
The Committee consider the matters outlined in this report and offers any
guidance to the Portfolio Holder it considers appropriate in terms of the process
of discharging these new duties.
2.2
The Committee supports the current process for dealing with the 2 applications
that have been received and asks officers to bring forward any new procedures
or protocols for dealing with future applications based on lessons they learn
from the current process.
Background
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3.1
Common Land
Common land is a piece of land in private or public ownership, where other
people have certain traditional rights to use it in specified ways, such as being
allowed to graze their livestock or gather firewood.
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3.2
Those who have a right of common are known as ‘commoners’, with the
landowner retaining other rights to the land, such as rights to minerals and
large timber and to any common rights left unexercised by the commoners.
However, in legal terms, the situation is more complex. There is no single
definition of the term 'common land', or indeed of 'common' or 'common rights'.
3.3
Common land of the 21st century is in many ways a relic of ancient land use
systems. The popular misconception that common land belongs to everyone
has persisted since at least Tudor times, when land would have been used for
communal farming and domestic practices. Collective farming was once a
widespread practice, dating back to medieval times, when it probably covered
more than half of England. It became a legally recognised form of land
management with the Commons Act of 1285, which has been replaced by the
Commons Act of 2006.
3.4
Town and Village Greens
Town or village greens share a similar history to common land. However, they
are defined separately for the purposes of the Commons Registration Act
1965. Village greens are usually areas of land within defined settlements or
geographical areas which local inhabitants can go onto for the exercise of
lawful sports and pastimes. Typically, these might include organised or ad-hoc
games, picnics, fetes and other similar activities. Whilst land forming town or
village greens may be privately owned, many greens are owned and
maintained by local parish or community councils. Some greens may also have
rights of common (ie grazing of livestock) over them.
3.5
The Commons Act 2006
The 2006 act is called a ‘consolidating statute’. It brings together in one act of
parliament all the common land legislation passed in the last 700 years. It
contributes to the management of commons by providing the mechanism for
commoners and those interested in common land to set up Commons
Councils. It also provides a streamlined process for gaining consent for works
on common land. Such applications will have to take account of effects on
public interests, including landscape, biodiversity, access and the historic
environment.
3.6
The Commons Act 2006 will, in due course, repeal the Commons Registration
Act 1965 entirely but that exercise will not be completed until approximately
2014. The 2006 Act, as it applies to this Borough at this time, clarifies the
criteria for registration and inserts some specific time limits during which
applications to register land as Greens may be made. The Act also tackles
some of the main problems that have arisen from case law in the past. Section
15 of the 2006 Act together with the Commons (Registration of Town or Village
Greens) (Interim Arrangements) (England) Regulations 2007 came into force
on 6 April 2007.
3.7
Section 15 makes the following changes in relation to the registration of new
Greens :(a) Provides a specific period of grace after use of land by local people “as of
right” has been ended by the landowner in which an application for registration
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can be submitted. This period of grace will normally be two years but as a
transitional arrangement only, will be five years in cases where the use was
ended before 6 April 2007.
(b) Ensures that, where a landowner grants permission for use of his land
where there has already been 20 years use “as of right”, the use continues to
be regarded “as of right” so that there is no time limit for an application for
registration, unless the landowner takes other steps to challenge the use.
(c) Any period of statutory closure, for example during a foot and mouth
disease outbreak, is to be disregarded when deciding whether there has been
20 years use “as of right”;
(d) Allows a landowner voluntarily to register his land as a Town or Village
Green.
3.8
An application to register land can be submitted voluntarily by the landowner,
or by a ‘significant number of inhabitants of the locality, or neighbourhood
within the locality’. In the latter case the landowner may themselves raise
objections to registration.
3.9
The Regulations introduce new forms for making an application which now
include a requirement to specify the locality, or neighbourhood within a locality,
in respect of which the application is made and a further requirement that an
application must include an Ordnance Survey Map of the claimed Green as a
scale of 1:2500 or larger.
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Implications for the Borough of Poole
4.1
Until the full implementation of the 2006 Act applications have to take into
account previous legislation and it is likely that for some time this authority will
be considering applications under both old and new legislation. The legislation
is complex and has led to a number of determinations being challenged in the
High Court and above. Officers will be required to ensure that the advice given
to the Licensing Committee relates to the correct legislative requirements
applicable to the application under consideration.
4.2
In most applications complex questions of both law and evidence will fall to be
determined. Our scheme of Functions Delegations specifies that the Licensing
Committee are the appropriate committee with responsibility for considering
applications under this legislation. In many cases it is going to be difficult or
impossible for the Committee to reach a considered decision without further
expert advice and assistance. The legislation provides that a Registration
Authority may hold a non-statutory Public Inquiry before a Planning Inspector
or Lawyer who will produce a report of their findings for consideration by the
committee. This will be particularly important in cases where the Council is the
landowner or has any sort of interest in the land in question. While not all
applications will require an independent inquiry, it would be inadvisable for the
Licensing Committee to be required to make a decision in the absence of
suitable advice on complex applications.
4.3
Applications that relate to land that is owned and/or controlled by the Council
could have an impact on any proposed works of improvement or development.
In evidential terms the receipt of an application in effect ‘freezes’ the status of
the land at that point in time. If land is registered as a TVG there are strict
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provisions regarding the consent regime for any works that it is desired to carry
out on the land although guidance indicates that consent will normally be
granted for works or facilities that are accepted as being for the better
enjoyment of the land as a TGV. This differing consent regime would require a
differing amount and style of consultation than those currently applicable to
existing processes. It is technically possible that any subsequent works of
improvement or development may need to be reversed, depending on the
outcome of the application. It would clearly be inappropriate for the Council to
allow anything to take place that might prejudice the future enjoyment of the
land were it to be registered and in the case of applications that are under
active consideration it is also considered that the pursuing of separate
proposals and consultations relating to works or improvements is inappropriate
and could even compromise the proper consideration of the application.
4.4
Furthermore that this position as outlined in 4.3 is supported by the Open
Spaces Society who have stated directly “as a matter of policy, the society tries
to encourage councils to defer planning applications/proposals for development
until any village green application has been determined.” It would clearly be
inappropriate for Councils to progress or allow proposals to take place that
could compromise the integrity of land which is subject to an outstanding
registration before that registration can be dealt with. The Council would be
advised therefore to limit works on any or its land that is subject to an
application to that of essential maintenance and repair only. Clearly the
management regime for land which is subject to TVG status is very different to
other land which is held as public open space. It seems reasonable for the
Council to withhold any decisions on long term spending or improvements until
the outcome of applications are known.
4.5
The legislation provides that a landowner may apply voluntarily to have their
land registered as a TVG. It has been suggested the Council should consider
taking this step. Again, these are new issues for the Council. It is clear however
that the Council, as a publicly accountable body and also as the Registration
Authority is in a different position from a private landowner who wished to take
this step. It has further been suggested that this step would save the Council
significant sums by obviating the need for lengthy investigations and Public
Inquiries. Although there is a chance that might happen it is equally the case
that objections might be received from other interested parties which would still
require these steps to be taken. In addition the Councils role is to consider the
wider public interest in the use public open space. Where appropriate the
Council may seek voluntary registration of specific parts of its land.
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Update on Current processes
5.1
In order to reduce financial risk to the Council, maintain control of resource
allocations, and present clear procedural guidelines to applicants, the following
processes have been adopted by the Council Service Units in handling this
new area of work.
5.1.1
The procedure for receipt and handling of TVG Applications is outlined in
Appendix 1.
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5.1.2
TVG Applications (including those already submitted) are being processed
sequentially from date of receipt (i.e. consultation relating to an application
commences only after a decision has been reached on the previous
application), and at a pace that current staffing and financial resources permit.
5.1.3
The Council defers any planned improvement or development works on any
land in its ownership and/or control, pending the outcome of a TVG application
relating to that land; other works are limited to those essential maintenance
and repair items that otherwise would result in more significant costs being
incurred at a future date, or that would affect the safety or health or users of
that land. If significant backlogs of application sites build up then the policy
context in which this advice is given might need to be reviewed in the light of
circumstances although the principles set out above would still need to receive
very careful consideration
5.1.4
A protocol will be developed to address those instances where it has become
apparent that the owner of private land is intending to expedite planned
development works in order to undermine a pending TVG application.
5.1.5
Financial provision to fund legal costs associated with any non-statutory public
enquiries or subsequent Judicial review is being considered.
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Financial Implications
6.1
The Borough of Poole received its first applications for town and village greens
in February this year. Since then it has received a second application with the
possibility of a further increase in applications and inevitably repeat
applications. This has added to the workload of ECPS and Legal Services
and will increase time pressure on the Licensing Committee.
6.2
It is considered that the amount of officer time to process each application
(including liaison with applicants and objectors, FOI enquiries, research and
member liaison) will be in the up to 250 hours, depending on the level of public
interest and objections. This does not include time for members who attend
committee.
6.3
A non-statutory inquiry could incur legal costs of between £6,000 to £20,000,
and up to a further £30,000 should the matter be referred to Judicial review,
although it should be noted that these are just estimates at this time. Indeed,
High Peak Council has reported that a recent decision cost over £100k in legal
advice.
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Legal Implications
7.1
The legislation relating to TVGs is outlined in the body of the report. There are
not other implications.
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8.1
Risk Management Implications
There is always a risk that the Council could be judicially reviewed due to the
complex nature of this new legislation, or because they are likely to involve a
conflict of interest. By holding a non-statutory inquiry, and engaging the
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expertise of a specialist barrister, the risk of referral to judicial review would be
significantly reduced.
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9.1
Equalities Implications
There are possible implications for Gypsies and Travellers, who may be
afforded additional safeguards on TVGs, albeit the complex nature of the
legislation requires further legal opinion in the area.
SHAUN ROBSON
HEAD OF ENVIRONMENTAL AND CONSUMER PROTECTION SERVICES
TIM MARTIN
HEAD OF LEGAL AND DEMOCRATIC SERVICES
Contact Officer:
Peter Haikin, Regulatory Services Manager
(ECPS)
(01202) 261736
Background Papers:
Appendix 1 - Procedure for Administering
Town & Village Green Applications
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