Council can consider application to register land as village green after Planning Court rejects claims of “trigger event”

Kent County Council can determine an application to register a village green after a High Court judge dismissed a claim from a developer that a ‘trigger event’ had occurred so as to prevent the site from being registered.

Mr Justice Holgate was asked by housebuilder Bellway Homes to make a declaration that the local authority had no jurisdiction to entertain the application to register the land at Two Fields, Westbere as a green under the Commons Act 2006.

The 2006 Act allowed land used for "lawful sports and pastimes” for at least 20 years to be designated a green, so preventing most forms of development.

The Growth and Infrastructure Act 2013 disapplied this right if a ‘trigger event’ occurred including where a development plan document identifies the land in question "for potential development".

In Bellway Homes Ltd, R (On the Application Of) v Kent County Council [2022] EWHC 2593 Holgate J said: “The central issue in this case is whether land included in a ‘green gap’ to which Policy OS6 of the Canterbury District Local Plan applies, is to be treated as having been identified by that plan for potential development.”

Bellway in 2019 told Kent it believed a trigger event had taken place with the local plan and the council took legal advice and later appointed leading counsel David Forsdick KC to hold an inquiry,

Mr Forsdick concluded no trigger event had occurred and Bellway then asked the court for a declaration that the right to make an application had ceased.

The judge said: “Given that the occurrence of a trigger event disapplies the right of a citizen to apply for the registration of a [green], I do not consider that a registration authority's decision on that issue is to be treated as a matter of judgment reviewable only on Wednesbury principles.

“The issue whether a development plan identifies land for potential development is a question of precedent or jurisdictional fact.”

He said Bellway had “rather strangely”, chosen to rely on a policy “the object of which is to protect specified green gaps which are vulnerable to coalescence through gradual expansion of existing settlements, linear development, isolated development and even minor development related to agriculture, recreation and the keeping of horses.

“This is not promising territory for identifying land for potential development.”

The policy underlying section 15C of the 2006 Act was that a conflict between the recreational use of land and its potential for development should be resolved through the planning system.

But the judge went on: “Parliament can only have intended to deal with conflicts on issues of this nature which are real.

“In other words, a realistic, rather than a theoretical, approach should be taken to whether a development plan identifies an area of land for potential development.”

Holgate J noted the land concerned lay outside a settlement boundary and the local plan did not suggest any need for development in any green gaps.

He said: “On any view [the] Policy imposes a relatively strict form of development control. It certainly does not amount to any positive encouragement of development.”

Holgate J added that he had reached “the firm conclusion that Policy OS6 does not identify land for potential development. Whether Policy OS6 should be treated as positive or as encouraging development in Green Gaps depends upon taking a realistic, sensible approach to the substance of the policy and its objectives.

"The policy is concerned to protect land which has been specifically selected for inclusion in a Green Gap because of its vulnerability to coalescence through development, even minor development associated with rural and recreational activities. It does not seek to identify all land within the Green Gaps, or any part of that land, for potential development.”

The judge said Kent was entitled to a declaration that the application site did not fall within para. 4 of schedule 1A to the 2006 Act and that it had jurisdiction to determine the application to register a green.

Mark Smulian