BDW Trading Ltd. (t/a Barratt Homes) v Spooner (Representing the Merton Green Action Group) & Anor.

The land consists of 12 hectares of open space in Caerwent, Monmouthshire. Outline planning permission for residential development was granted in June 2006. In March 2007, Monmouthshire County Council (MCC) appropriated the land for planning purposes (ie approved its change of use from open space to development land). In October 2007 the claimants, Barratt Homes Ltd, bought the land from the council for £10.9 million. MCC granted full planning permission and in March 2010 Barratt began to build. Meanwhile, in July 2008 the Merton Green Action Group, had written to Barratt Homes indicating its intention to apply to register the land as a village green. Barratt Homes, the objector, contended that section 241 of the Town and Country Planning Act 1990 (TCPA) by which the land was appropriated for development, overrides section 15 of the Commons Act 2006, by which the land was registered as a green and thus protected by nineteenth-century legislation. Therefore, any village green rights which might have accrued on the application land have been displaced by the objector’s rights to develop the land in accordance with planning permission. The action group argued among other things that there was nothing in section 241 to indicate that it applied to subsequent specific legislation, and there is nothing in the Commons Act 2006 to indicate that registration as a green must give way to the TCPA. On the other hand the claimant argued that section 241 refers to ‘any enactment’ and does not state that it is restricted to enactments prior to it. If anything in the Commons Act 2006 was intended to take away the provision in the TCPA, it would have been spelled out. The judge considered that the TCPA provided ‘the fundamental legislative architecture for planning use of land, with both general over-arching provisions, and highly detailed specific provision for individual areas’. The language of section 241 is entirely general, ‘notwithstanding anything in any enactment’, and the judge considered that ‘it would be natural, if parliament intended this to refer only to prior or previous enactment, for the statute to say so expressly’. In relation to village greens, s241 TCPA 1990 is specific in its prescription and, it is the Commons Act 2006 which is the more general in application. The Judge reached the clear conclusion that it is the provisions of section 241 TCPA which prevail and that the Commons Act 2006 has not expressly or impliedly abrogated the effect of those provisions. In this case, although the land was arguably a green at the time of appropriation, it had not been recorded as such and therefore it can be argued that MCC was not aware that the land was a green. Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 only protect land which is registered as a green.