Town and Village Greens: Wales v England
The rights relating to town and village greens have long been enshrined in legislation but evolving legal procedures and the increasingly divergent regimes of England and Wales have further highlighted different attitudes towards dealing with barriers to development.
England has created a framework to registering village greens that some regard as being too developer friendly. In contrast, Wales has adopted an approach that is more favourable to local inhabitants seeking to preserve the green green grass of home.
In England, for example, the risk to development proposals created by new town or village green applications has been addressed with the introduction of trigger events which provide developers with more certainty and less risk when investing. The triggers restrict registration of new greens once land has entered the planning system, whereas in Wales, planning consent must have been granted before new applications for greens will be rejected resulting in a high level of uncertainty.
This level of uncertainty is exacerbated by the difference in "grace periods" for registration of new greens. The grace period allows use of land as a green to have ceased up to one year before an application for registration is made in England but up to two years in Wales. As a result, if developers want to be sure a planning application will succeed they face the undesirable prospect of sitting on newly purchased land for up to two years.
A further difference between English and Welsh law arising from the Growth and Infrastructure Act 2013, is the provision of a mechanism for landowners in England to deposit a statement and a map to effectively 'interrupt' recreational use and stop the clock on the qualifying period of 20 years 'use as of right'. The new regime echoes provisions relating to rights of way in the Highways Act 1980 but there is no such apparatus in Wales. The benefit is that it allows landowners in England to tolerate recreational use of their land without fear that it could be registered as a green once 20 years use has accrued. This provides a degree of certainty in respect of when and where rights are accrue over private land.
Similar provision was proposed during the white paper consultation for what is now the Planning (Wales) Act 2015. However, following successful lobbying by interest groups, watered down reforms trickled into the Principality leaving developers to get bogged down in town or village green matters whilst their English counterparts are up and running.