Publication
Real Estate Focus - December 2024
December has been a very busy month, with a flurry of new government policies and consultations.
Planning Applications, Planning Permissions, and the Commons Act 2006
First published by LexisNexis
Global | Publication | June 2022
Content
1. Introduction
| 1.1. | The Commons Act 2006 contains the mechanism for the application for, and the registration of town and village greens. Registration protects these spaces for the benefit of local inhabitants, so that they can continue to enjoy sports and pastimes on such spaces in the future, free from the risk of development. However, the legislation became to be viewed as a means of thwarting legitimate development proposals. Amendments made by the Growth and Infrastructure Act 2013 therefore provided exceptions to the ability to apply for town or village green registration; where a “trigger event” occurs application cannot be made, although if a “terminating event” subsequently transpires then application may again be made. |
2. Trigger events under the Commons Act 2006
| 2.1. |
Section 15 of the Commons Act 2006 is entitled “Registration of Greens”; it came into force in England on 6 April 2007. Section 15(1) provides that: “Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsections (2), (3) or (4) apply”. |
| 2.2. |
Section 15C was inserted into the Commons Act 2006 by the Growth and Infrastructure Act 2013 and came into force on 25 April 2013; it provides: “The right under section 15(1) to apply to register land as a town or village green ceases to apply if an event specified in the first column of the Table set out in the relevant Schedule has occurred in relation to the land (“a trigger event”).” |
| 2.3. | Schedule 1A was also inserted into the Commons Act 2006 by the Growth and Infrastructure Act 2013 and came into force on 25 April 2013. |
| 2.4. |
The trigger event in column 1, paragraph 1, of Schedule 1A to the Commons Act 2006 provides: “An application for planning permission, or permission in principle, in relation to the land which would be determined under section 70 of the 1990 Act is first publicised in accordance with requirements imposed by a development order by virtue of section 65(1) of that Act”. |
| 2.5. | Applications made under section 15(1) before 25 April 2013 are unaffected by the changes. Of necessity applications for planning permission which had been submitted before 25 April 2013 would preclude applications under section 15(1) from being submitted after 25 April 2013. |
| 2.6. | Section 70 Town and Country Planning Act 1990 (TCPA90) is entitled “Determination of applications: general considerations”; it provides that where an application is made to a local planning authority for planning permission that they may either grant permission unconditionally (but subject always to a condition identifying when development must be commenced by), or subject to such conditions as they see fit, or they may refuse planning permission. Further, the local planning authority in determining an application shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. |
| 2.7. |
Applications for planning permission require publicity. In England the publicity requirements are contained in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO). A number of DMPO Articles contain publicity requirements, with the chief amongst these being Article 15, which states that: “An application for planning permission must be publicised by the local planning authority to which the application is made in the manner prescribed by this article.” |
| 2.8. | The DMPO is a “development order” which was made inter alia in the exercise of powers conferred by sections 65 and 71 TCPA90. |
3. Determined and undetermined planning applications
| 3.1. | Column 1, paragraph 1 of Schedule 1A of the Commons Act 2006 only applies to applications that have yet to be determined under section 70 TCPA90. In the unlikely scenario that there are any applications that remain undetermined under previous (now repealed) legislation, such as the Planning Acts of 1947 and 1971, then column 1, paragraph 1 of Schedule 1A would apply to such applications as the transitional provisions contained in the Planning (Consequential Provisions) Act 1990 mean that an application submitted under a now repealed enactment can be determined under the corresponding provisions of the TCPA90. |
| 3.2. | However, planning applications that have been determined either under the Town and Country Planning 1990 (TCPA90), or under previous (now repealed) Planning Acts, at the date an application under section 15(1) is made, have no bearing on the trigger event in column 1, paragraph 1, Schedule 1A of the Commons Act 2006, as this does not relate to determined applications, but only relates to planning applications that have been made, but not yet determined. |
| 3.3. | The determination of an application (if it is a refusal, for example) can, however, be relevant to a termination event under column 2, paragraph 1(c) of Schedule 1A which would then enable an application to be made under section 15(1) following such refusal. Equally, if an application was determined, and permission granted (whether under the current or previous Planning Acts), but the permission was not implemented and it lapsed then this is also a termination event pursuant to column 2, paragraph 1(d) of Schedule 1A and would again enable an application to be made under section 15(1) following such lapsing. |
| 3.4. | The position will be different where a permission has been granted, whether under the current, or previous Planning Acts, and it has been implemented but only partially so, perhaps leaving land that could be built on undeveloped, and in respect of which “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years” (sub-sections 15(2) - (4)). In such a case, a section 15 application could be made. If the land was subsequently registered as a town or village green, then irrespective of the existence of the extant permission, section 38 Commons Act 2006 would be engaged entitled “Prohibition on works without consent”, which requires specific consent to be granted under that section, in addition to any planning permission, to enable works to be undertaken on the registered land. |
4. Planning applications made by local authorities in respect of their own land
| 4.1. | Regulation 2 of the Town and Country Planning Act (General) Regulations 1992 provides that Part III of the TCPA90 shall apply to the land of an interested planning authority (subject to certain exceptions). Section 70 TCPA90 falls within Part III of the statute. Regulation 3 permits a local planning authority to make a planning application (whether on its own or jointly with another) for land that it owns, and to determine such an application itself. Regulation 7 provides that publicity for such applications is to be carried out in accordance with any development orders made pursuant to sections 65 or 71 TCPA90. |
| 4.2. | Since an interested planning authority therefore has to comply both with the requirements of section 70 TCPA90 relating to the determination of planning applications, and with the publicity requirements for applications currently enshrined in the DMPO (in England), it is clear that the publication of an interested planning authority’s planning application will be a trigger event for the purposes of column 1, paragraph 1, Schedule 1A Commons Act 2006, and therefore present a bar to the submission of a section 15 Commons Act 2006 application. |
| 4.3. |
4.3. Local authorities with surplus land that they are considering developing either themselves or perhaps in partnership with a developer would therefore be well advised to undertake appropriate due diligence on the land, before preparing a planning application, to see if there is a risk that a section 15 application could be made, which may frustrate their plans. The other option for local authorities is to take advantage of column 1, paragraph 3 of Schedule 1A to the Commons Act 2006, being a trigger event which reads: “A draft of a development plan document which identifies the land for potential development is published for consultation…”. Including surplus land in a draft development plan will provide sufficient security that a section 15 application cannot be entertained. An application for planning permission could then be made, and there would be no need to wait until the plan became adopted policy before progressing the planning application. |
Head of Planning; Partner
Email
sarah.fitzpatrick@nortonrosefulbright.com
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