Growth and Infrastructure

Memorandum submitted by St Modwen (GIB 63)

SECTIONS 12 TO 14 OF THE GROWTH AND INFRASTRUCTURE BILL

1 Summary

 

1.1 St Modwen supports the Bill as currently drafted. However, St Modwen submits that in one important respect the Bill should go further. Clause 13(4) of the Bill states that:

The amendment made by subsection (1) does not apply in relation to an application under section 15(1) of the Commons Act 2006 which is sent before the day on which this section comes into force.

1.2 St Modwen requests that this amendment read instead:

The amendment made by subsection (1) shall apply to any application under section 15(1) of the Commons Act 2006 which has not been determined by the commons registration authority before 12 October 2012, whether or not such determination has been subject to later court proceedings.

1.3 The effect of this amendment would be to release immediately from the threat of TVG registration all land where an application has been made but not decided by the registration authority as at the date the Bill has been published.

1.4 Numerous schemes would benefit from this provision, on the basis that past trigger events would be taken into account under clause 13(3). This amendment would bring the immediate benefit which the Government is looking for under this legislation to remove obstacles to development.

1.5 It would mean that TVG applicants who have spent time and money in preparing applications would lose the right to continue with the TVG application unless a termination event took place. This is, however, justified for the reasons given in the detailed submission.

2 About St Modwen

 

2.1 St Modwen Properties Plc is the UK's leading regeneration specialist. The Company operates across the full spectrum of the property industry from a Birmingham based head office, a network of several regional offices, a residential division and three joint ventures with leading industry partners.

2.2 The Company is focussed wholly upon regeneration with an outstanding 25 year track record of adding value by managing schemes between the planning process remediating contaminated land and active asset management and development.

2.3 With extensive experience in dealing with complex and challenging sites, St Modwen has a land bank of more the 5,800 net developable acres and is focussing on the long term development of commercial property and residential land.

3 Submissions : Background

 

3.1 St Modwen welcomes the Government's recognition that TVG law represents a serious issue for development in England and Wales, which requires urgent reform.

3.2 St Modwen has some specific points to make on the draft Bill, but considers it is important to understand the more general position and history first.

3.3 St Modwen agrees with the many commentators who have pointed out that when the Commons Registration Act 1965 was enacted it was almost certainly not intended to create a system of registration of new TVGs based on 20 years use. Since the mid-1990s (i.e. once 20 years had accrued since the de facto 1970 start date), those opposed to development have aggressively exploited this unintended loophole in the original legislation to seek registration of land.

3.4 Where TVG registration takes place it places a fetter on the owner's use of the land which is so extreme as to be akin to compulsory acquisition. There is, however, no compensation for the total loss of value of the land. This is profoundly unjust. It is this feature of the legislation which has led to the potency of a TVG application - registration makes building illegal in perpetuity. This is turn has led to a quite extraordinary amount of litigation as landowners and developers, and those opposing development (mostly with the benefit of legal aid funding) have battled over extremely high stakes. The number of cases which have reached the House of Lords and, now, the Supreme Court in what should be an arcane area of law is the clearest indication that something is seriously wrong.

3.5 St Modwen does not consider that Parliament has previously properly understood the way in which TVG law has been used and misused by objectors to development. The increase of TVG applications in the last 15 years has, in effect, been encouraged by the amendments to the 1965 Act under the Countryside and Rights of Way Act 2001 and the wholesale re-casting of the legislation under the Commons Act 2006.

3.6 The increase in applications has also been encouraged by a series of court cases which have interpreted the legal test in ways which have made registration easier and easier.

3.7 Given the historic and honourable role of the courts in protecting property rights, it has been very surprising, with a few exceptions, to see how prepared the courts have been to act in this way. The leading exception was when the Court of Appeal rightly sought, in the Oxford Traps judgment, to stop the TVG "industry" in its tracks by ruling that a landowner should be able to take steps on site to defeat an application right up to the point of registration. Lord Justice Carnwarth, as he then was, made an entirely reasonable comparison with the law on adverse possession for registered land. Under the law in that case a landowner has a final opportunity to object to the loss of his land, and such an objection alone defeats the application for adverse possession.

3.8 TVG applications have been repeatedly been used as a tactic to delay and thwart development which is clearly in the public interest, as demonstrated by its allocation in the development plan and/or the grant of planning permission. It is in the planning system that the public interest should be weighed.

3.9 St Modwen has been directly affected by TVG risk in terms of needing to considering it when acquiring development sites, when bringing those sites forward for development and selling those sites. Judging this risk is extremely difficult. This is particularly the case when allowance has to be made for exaggerated or dishonest evidence being given by witnesses in support of TVG applications, motivated by the desire as they see it, to "save" the land in question from development. St Modwen has also been directly affected by TVG applications.

3.10 It is unreasonable for the risk of TVG registration to be hanging over development land in this way, when the consequences are so extreme. Insurance against TVG risk is very hard to obtain except where the risk is extremely low.

3.11 When land is registered it can only be de-registered where equivalent land can be provided as replacement land. This land is normally simply unavailable. Even where it is available it is likely to have an equivalent value to that which has been registered meaning that valuable land is still being sterilised and its value destroyed without compensation.

3.12 St Modwen wishes to call into question the fundamental nature of the "rights" which have been allowed to develop under TVG law. Why should 20 years indulgence by a land owner in unthinking allowance of recreational use of his land (which can be as little as intermittent dog walking if more than "trivial or sporadic" spread over 20 years use) give rise to a public right in perpetuity for it to be used for any recreational purposes?

3.13 There has never been a proper debate on the nature and morality of this "right". It has grown up in a piecemeal fashion in the way outlined in this submission. This has given rise to a complete departure from the essence of what TVGs are supposed to be about i.e. a very specific right for a very specific group of people, on land that has the character of a village green as the public generally understands it. The 1965 Act was supposed to create once and for all registration so that landowners and others knew where they stood.

3.14 Instead, the law now effectively creates a general public right for any recreational purpose, regardless of the user which gave rise to registration.

4 SUBMISSIONS: The Bill as currently drafted

 

4.1 St Modwen supports the Bill as currently drafted. However, St Modwen submits that in one important respect the Bill should go further. Clause 13(4) of the Bill states that:

The amendment made by subsection (1) does not apply in relation to an application under section 15(1) of the Commons Act 2006 which is sent before the day on which this section comes into force.

4.2 St Modwen requests that this amendment read instead:

The amendment made by subsection (1) shall apply to any application under section 15(1) of the Commons Act 2006 which has not been determined by the commons registration authority before 12 October 2012, whether or not such determination has been subject to later court proceedings.

4.3 The effect of this amendment would be to release immediately from the threat of TVG registration all land where an application has been made but not decided by the registration authority as at the date the Bill has been published.

4.4 Numerous schemes would benefit from this provision, on the basis that past trigger events would be taken into account under clause 13(3).

4.5 This amendment would bring the immediate benefit which the Government is looking for under this legislation.

4.6 It would mean that TVG applicants who have spent time and money in preparing applications would lose the right to continue with the TVG application unless a termination event took place.

4.7 St Modwen would argue that this is not unreasonable because:

(a) The collective importance of the developments under threat are too important to the country for the loss of the accrued rights in the various undetermined applications to be considered more important, particularly bearing in mind the point made at paragraph 4.8 below;

(b) The clause as currently drafted will encourage a rush of applications to be made before clause 13 is brought into force. Such applications are almost certainly under preparation since publication of the Bill and the attendant publicity. The current drafting will therefore achieve the precise opposite of its intention, namely to lift the threat of TVG risk from development sites, by triggering a final wave of applications which will then take up to 3 years to be resolved;

(c) The legislation is fundamentally unjust for the reasons summarised above. Those seeking to stop development have had an extreme and unwarranted weapon in the armoury of opposition for the last 15 years. The opponents of development should count themselves lucky to have had this windfall, rather than consider themselves entitled to complain about its immediate withdrawal if this suggestion is adopted;

(d) In most cases applicants will not have spent significant sums of money in preparing their applications. The applications attract no fee, and most applications are done without the use of lawyers or consultants. The ease with which an application can be made is one of the most worrying features of the legislation. A simple application form and a few witness questionnaires completed on the doorstep are all it can take to destroy a development site. Applicants frequently conduct any public inquiry in person and do not incur the cost of professional representation.

4.8 St Modwen would point out the Parliament imposed a far worse injustice on landowners under the Commons Act 2006, and the amendment it is proposing would go some way to redressing the balance even at this late stage. The injustice in that case was the retrospective effect of section 15 in relation to recreational use by "permission". (Use by permission is not use "as of right" and therefore breaks the continuity in qualifying user.) In reliance on the law before the Commons Act 2006 was proposed many landowners had put up signs (or taken other steps) giving express permission for their land to be used for recreational purposes, on a revocable basis. Taking such steps provided complete protection against a future TVG application. The 2006 Act, however, took that protection away retrospectively by saying that such permission was of no legal effect if 20 years qualifying use had accrued before such permission was given. This was an extreme step for Parliament to have taken, and there is a widely held view that it could have been successfully challenged on human rights grounds.

5 submissions: An alternative approach

 

5.1 St Modwen would propose an alternative approach entirely to that contained in the Bill. Namely to introduce an amendment to the Commons Act 2006 which requires all affected landowners to be notified of a TVG application, as is currently the case, and for an objection by a such a landowner to defeat an application on its own in relation to his land. This would be the same essential approach as that followed in adverse possession cases on registered land.

5.2 This amendment would mean that land would only be registered where the landowner agrees to its registration. This will arise from time to time, but will be relatively rare. It would complement the situation where a landowner can apply for voluntary registration.

5.3 If that is going too far, the amendment to the Bill proposed above (i.e. to apply to all undetermined applications by registration authorities as at 12 October 2012) would largely have the effect of putting this area of law back into the obscurity to which it belongs, rather than in the front line of the battle to bring forward development in a recession.

5.4 Finally, there is also a strong case for the retrospective removal of land from registration where this has taken place on land in the then extant development plan or the subject of a planning application at the relevant time. This would have the effect of undoing the considerable damage of this area of law over the last 15 years. There are numerous schemes, including public sector development, which could be re-promoted if this took place.

December 2012

 

Prepared 10th December 2012