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Protecting your development rights: assets of community value

When it comes to developing greenfield land, a prospective builder will face a long list of requirements and a number of hurdles before any work on site can commence. Planning permissions, access rights, statutory agreements and the many outside bodies involved in a planning development means it can take years between the purchase of a site and construction commencing. During this time it is essential that access to the site is secure and the developer prevents members of the public from accessing it. Although doing so can amount to trespass, sustained public use over a period of time can lead to claims of public rights over the land, particularly rights of way, which could seriously hinder development.

However, as a recent and local case demonstrates, sustained public activity on private land can lead to a separate negative outcome for developers – the designation of land as an asset of community value. Such land is placed on a public list and a moratorium placed on it, so when an interested purchaser makes an offer, the local community are able to put together their own bid for the land and make an offer in that time. Contracts can only be exchanged, committing the land to be sold, once this period has ended. A developer interested in building on greenfield land would thus face a further hurdle in purchasing the land before planning could even commence.  

In 2018 and on the outskirts of Winchester a developer, Oliver’s Battery Ltd (OBL) owned a 46 acre site, most of which had been let out under an agricultural lease since 1995. A number of footpaths and a bridleway ran around the land and there were several locations where the public could freely access the fields, which had not been fenced off from the paths. The land was equally open to a separately leased butterfly reserve to the south, which the public had general rights to access. Much of the field had been left fallow under a set-aside scheme and encouraged to grow wild. No doubt the lack of regular farming and situation near the reserve and housing to the north west encouraged members of the public to regularly use the land for recreational and leisure purposes, such as walking dogs, cycling and horse riding.

Following recent developments around Winchester, Oliver’s Battery Parish Council (OBPC) took the step of nominating OBL’s land as an asset of community value in May 2018. This is an unusual method of protecting public rights, as under the Localism Act 2011 land of community value requires an active current (non-ancillary) use, which benefits the social interests of the local community (such as leisure or sporting interests) and will realistically continue in future. Something more than a public right of way would be needed and proving a non-ancillary use could be difficult where land is clearly used for a specific purpose such as farming.

However, OBPC were able to produce a persuasive bundle of evidence to show that local members of the public had used the land freely since at least 2006, with paths developing which were visible on Google Earth and which were recorded on a legal plan based on Ordinance Survey data. Although OLB had at least twice erected signs to dissuade trespassing, which may have been deliberately removed shortly afterwards, it was successfully argued from case law that the unlawful use of the land did not prevent it being registered as a community asset. Instead, the peaceful use of the land was held to have beneficial effects on the local community, while the relative lack of agricultural use on the land (an annual mowing) meant it could no longer be considered the main use taking into account the relative increase in the community’s recreational use.

Further, although OBL intended to develop the land for housing, it was considered uncertain that planning permission would be granted and not ‘fanciful’ that community non-ancillary use would continue in the foreseeable future. The land fulfilled both parts of the Localism Act test and OBL’s appeal against its registration as a community asset was dismissed.

With the prospect of more greenfield development in future under the Government’s presumption of sustainable development, situations like this risk becoming more commonplace as local communities take action to preventing building in their back yards. If you own or are considering purchasing land for development, we strongly recommend you take legal advice on the issues you should be aware of.

At Clarke & Son our commercial property team has a wealth of experience acting for local landowners and developers in purchases, option agreements and conditional contracts. Call us on 01256 320555 or email mail@clarkeandson.co.uk to discuss how we can assist you in your plans.   

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