Protecting against town or village green registration

The Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013 brings into force with effect from 1 October 2013 (in so far as not already in force):

• S.13 Growth and Infrastructure Act 2013 (GIA), which amends s.31 Highways Act 1980 (Highways Act) and allows the Secretary of State to make regulations about statements and maps deposited and declarations lodged under s.31 (6) to negative an intention to dedicate a way as a highway; and
• S.15 GIA, which inserts new ss.15A and B into the Commons Act 2006 (Commons Act) that allow a landowner in England to deposit a statement and map for the purpose of bringing to an end a period of recreational use, as of right, on the landowner's land.

In exercise of the powers conferred by ss.13 and 15 of the GIA, the Secretary of State has made The Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013 (2013 Regulations) which also come into force in England on 1 October 2013.

The 2013 Regulations apply to applications to: deposit a statement and map, or lodge a declaration, under s.31 (6); and to deposit a statement and map under s.15A (1). They contain provisions which: prescribe the form the application must take; permit combined applications under both provisions; determine when a statement made under s.15A (1) is regarded as deposited; set out the duties of an authority upon receipt of a valid application; and set out the duties of a commons registration authority to maintain a register of statements and maps deposited under s.15A (1).

S.31 (6) contains a procedure which a landowner can follow to rebut a presumption of deemed dedication of a public right of way. The landowner must deposit with the appropriate authority a map of the land (to a specified scale) and a statement identifying any ways that the landowner admits to being a highway. Currently, the landowner must then lodge a statutory declaration with the authority stating that no additional land has been dedicated within the first, and every subsequent, period of ten years from the date of deposit of the map and statement, or the date that a previous declaration was lodged. The duties of the appropriate authority to maintain a register of statements, maps and declarations are contained in s.31A and the Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007 (2007 Regulations). These Regulations are now amended to: replace each reference to a statutory declaration with a reference to a declaration; extend the period within which a declaration can be lodged following the deposit of a statement and map (or previous lodgement of a declaration) from 10 years to 20 years; and provide for paper registers kept under s.31 (6) to be held at a specified office or the principal office of the authority.

The 2013 Regulations apply to any application made on or after 1 October 2013 to: deposit a statement and map under s.31 (6); lodge a declaration under s.31 (6); and deposit a statement under s.15A (1).

The appropriate authority in relation to a statement and map deposited under s.15A is a commons registration authority which under s.4 Commons Act is a county council; a district council for an area without a county council; or a London borough council. The appropriate authority in relation to a statement and map deposited, or declaration lodged, under s.31 (6) is a county council, metropolitan district council, London borough council or the Common Council in the City of London.

Any application must be: in the form, or substantially the same form, as that set out in Schedule 1 to the 2013 Regulations, with such insertions and omissions as the circumstances require; signed by each and every owner of the land, their duly authorised representative or where a body corporate or an unincorporated association, by the secretary or other duly authorised officer; either accompanied by an Ordnance map at a scale of not less than 1:10,560 showing the boundary of the land to which the application relates in coloured edging or refer to a map previously deposited under the 2013 Regulations or (before 1 October 2013) under s.31 (6); and accompanied by the fee specified by the appropriate authority.

Where an applicant is unable to read or write, Regulation 2(3) provides for the application to be supported by a certificate made by a conveyancer (as defined in Rule 217A (1) of the Land Registration Rules 2003).

A statement made under s.15A (1) will be regarded as deposited with a commons registration authority when a valid application is given to the authority. A combined application made under both s.31(6) and s.15A (1), will be regarded as deposited with the appropriate authority by reference to ss.322(2) and 322(3) Highways Act (which determines when a single application under s.31(6) is regarded as deposited).

Regulation 4 prescribes the steps that an appropriate authority must take upon receipt of a valid application. These steps include requirements to: publish notice of the application on the appropriate authority's website; serve email notice on anyone who has provided the appropriate authority with an email address for that purpose; and for not less than 60 days, post notice of the application at or near an obvious place of entry to the land or, if there is no obvious place of entry, at least one conspicuous place on the boundary. If the notice is removed, obscured or defaced without fault on the part of the appropriate authority before the 60 days has elapsed, the authority is treated as having complied with this requirement. The notice must be in the form, or substantially the same form, as that set out in Schedule 2 to the 2013 Regulations with such insertions and omissions as the circumstances require.

S.15B (1) requires each commons registration authority to maintain a register of prescribed information about statements and maps deposited under s.15A. That duty may be discharged by the prescribed information being kept in a newly created part of the register currently maintained under s.31 (6). Regulation 5 prescribes the information the register must contain and Regulation 6 the manner in which the register must be kept. The register must be kept in paper and electronic form. The electronic form must be available for public inspection on the appropriate authority's website. An appropriate authority has power to remove an entry from the register if satisfied it contains a material error. The appropriate authority must give not less than 28 days' notice to the landowner of the appropriate authority's intention to remove an entry.

Landowners who are concerned about the potential for town or village green registration applications in respect of their land will therefore no doubt wish to consult with their professional advisors in readiness for depositing the requisite statement and map to bring to an end any ‘as of right’ recreational use.

Public rights of access to the countryside - conclusive maps

The Countryside and Rights of Way Act 2000 required conclusive maps of registered common land and access land to be produced.

Once issued in conclusive form (a process completed in 2005), the maps must, by virtue of s.10, be kept under review by Natural England.

The Countryside and Rights of Way Act 2000 (Review of Maps) (England) Regulations 2013 took effect from 6 April 2013 and require that where the map is of an area in England, the first review must be undertaken not more than fifteen years after the issue of the map in conclusive form and subsequent reviews undertaken not more than twenty years after the previous review.

The Access to the Countryside (Maps) (England) Regulations 2013 have now been made and come into force, in England only, on 1 October 2013.

They require Natural England to make provision for: (i) the public to be able to inspect the conclusive maps; (ii) retaining the conclusive maps in electronic form; and (iii) the inspection and supply of the conclusive maps on a reduced scale being a scale which is smaller than the scale of the conclusive map but not less than 1:25,000.

The Regulations also revoke a number of earlier statutory instruments namely SI 2001/3301, SI 2002/1710, SI 2003/32, SI 2003/1591 and SI 2005/2027.

Extended permitted development rights for masts and antennas

The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2013 (the Order) comes into force on 21 August 2013 in England only.

The order amends the general permitted development rights enjoyed by electronics communications code operators that enable the operators to erect certain telecommunications apparatus without requiring express planning permission. Several of the amendments widen the permitted development rights. Other amendments seek to clarify the extent of what is currently permitted.

Under s.57 (1) of the Town and Country Planning Act 1990 (the Act), planning permission is required for the carrying out on land of any development. Development is defined in s.55 (1) as the "carrying out of building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of any buildings or other land".

Under s.59 (1) the Secretary of State may, by development order, grant deemed planning permission for specified development or classes of development. The Town and Country Planning (General Permitted Development) Order 1995 (the 1995 Order) operates by giving deemed planning permission for certain developments without the developer having to make a formal application for planning permission.

Schedule 2 to the 1995 Order grants planning permission for classes of development described as "permitted development". Class A of Part 24 of Schedule 2 to the 1995 Order gives deemed planning permission, subject to exclusions and conditions, for certain development to be carried out by, or on behalf of, an electronic communications code operator for the purpose of the operator's electronic communications network.

The Order amends Class A and increases the existing permitted development rights for electronic communications code operators by permitting:

• Existing freestanding masts to be altered or replaced to become masts of up to 20 metres high and up to one third wider than the existing mast. This will not apply to existing freestanding masts which are located on article 1(5) land (that is to say a National Park; an area of outstanding natural beauty; a conservation area; an area specified for the enhancement and protection of the natural beauty and amenity of the countryside; or the Broads) or on a site of special scientific interest and is subject to prior approval. At any given height, the altered or replacement mast must not be more than one third wider than the original mast was at that height.

• Larger dish antennas and more antenna systems to be attached to certain buildings and structures. The existing rules vary depending upon whether the building or structure is less than 15 metres high or 15 metres high or more. The amendments increase the extent of permitted development under both sets of rules.

• Subject to size limits, up to three additional dish antenna and three additional non-dish antenna to be attached to existing electronic communications apparatus attached to buildings or structures (including masts) on article 1(5) land. The existing apparatus must already be sending and receiving electronic communications.

• Up to two of a newly defined type of antenna (small cell antenna) to be attached to buildings and structures (other than dwelling houses and within the curtilage of dwelling houses) that are not on a site of special scientific interest. Note however that this development is permitted on article 1(5) land subject to prior approval.

• Antenna to be attached to buildings or structures (other than masts) at an increased height without the need to go through the prior approval process. Currently, the threshold is up to four metres higher than the building or structure and this will be increased to six metres.

The Order by Article 12(16) also:

• Clarifies that prior approval is only required when a single development of radio equipment housing has a volume in excess of 2.5 cubic metres.

• Removes the need for prior approval for development which is ancillary to radio equipment housing.

• Amends the prior approval procedure so that if the developer and the local planning authority agree minor amendments to development proposed in a prior approval application a new application is not required.

• Clarifies that planning permission given under Class A extends to casing or covering; mounting, fixing, bracket or other support structure; perimeter walls or fences; handrails, steps or ramps; or security equipment so far as ancillary to and reasonably required for the electronic communications apparatus, provided that the electronic communications apparatus is not on a site of special scientific interest.

Planning Use Classes – ‘Your flexible friend’

The Department for Communities and Local Government is consulting on proposals to amend the Town and Country Planning (General Permitted Development) Order 1995 (as amended) to allow further flexibilities between use classes. The consultation will close on 15th October 2013.

The order provides for certain permitted development rights which allow the use of a property to change without planning permission and the consultation seeks views on proposals to change permitted development rights to allow: 

• Change of use from an existing building used as a small shop or provider of professional/financial services (A1 and A2 uses) to residential use (C3).
• Retail use (A1) to change to use as a bank or a building society.
• Change of use from existing buildings used for agricultural purposes of up to 150 square metres to residential use (C3).
• Premises used as offices (B1), hotels (C1), residential (C2 and C2A), non-residential institutions (D1) and leisure and assembly (D2) to change to nurseries providing childcare.
• A building used for agricultural purposes of up to 500 square metres to be used as a new state funded school or nursery providing childcare. 

The proposals, which apply to England only, also include granting implied permission to carry out certain building works connected with the change of use.