Posted by Peter Foskett, Partner
The tide is changing – landowner statements
This month the Government has brought into effect the provisions contained in the Growth and Infrastructure Act 2013 that aim to help developers fight off residents who are opposing development. For some time now, one of the tools available and …
This month the Government has brought into effect the provisions contained in the Growth and Infrastructure Act 2013 that aim to help developers fight off residents who are opposing development.
For some time now, one of the tools available and regularly used by people trying to prevent development has been to assert that the proposed development land has been used for many years by residents for recreational purposes. Quite often, those recreational purposes have simply been dog walking. As a consequence, the land has become capable of being designated a town or village green.
It has been difficult for developers to establish the likelihood of such a claim being made, as quite often this has only been flushed out once a planning application has been made.
The Government has now introduced a number of measures to assist developers and landowners in determining whether or not such a claim is going to be made. A key measure is to enable landowners to file a statement with the Commons Registration Authority (usually the County Council) confirming that the land is not intended by the landowner to become a town or village green.
This statement effectively will stop time running in respect of any claim that the land is becoming a town or village green through recreational use. After the lodging the statement any person seeking to establish that the land has already become a town or village green to a long user has a period of one year in which to make that claim. If no such claim is lodged within that one year period, then any accrued rights will have been lost.
This statement by the landowner needs to be renewed every 20 years. Then as long as this action is taken, this process will ensure that land can’t become a town or village green despite the public continuing to use the land for recreational purposes.
This process has been in place for a long time to enable landowners to negate public rights of way being acquired over their land by long use. Such declarations needed to be renewed every 10 years. Following introduction of this new process relating to town and village greens, the period for the filing of these declarations has also been extended to 20 years.
The Government has introduced a prescribed form for the making of the statement. The same form contains a declaration to stop the land becoming a town or village green and also to stop the acquisition of public rights of way over the land. This avoids the need for two separate applications to be made.
Landowners should now ensure that they lodge such statements in respect of any land that has future development potential. It would be sensible to lodge such statements in respect of all land which is potentially the subject to public encroachment and subsequent claims for rights of way or recreational use. The prescribed form can be downloaded from the Government website by clicking here.
In lodging the statement, a landowner should be conscious that notice will be served on potentially interested parties with the intention of highlighting the public to the statement. This may flush out resistance and even claims that the rights which are sought to be prevented, have in fact already accrued and exist. At least this will resolve the position rather than leaving the true position uncertain.
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