Land protection laws set to delay brownfield schemes

New laws to protect common land threaten to halt the regeneration of many brownfield sites, lawyers have warned.

Under the Commons Act, which received Royal Assent last month, the development of open space could be stalled for up to five years.

Section 15 of the act changes the law so that those wanting to register open land as a village or town green no longer have to prove it has been in recreational use for the past 20 years.

This means that a developer that wants to build on derelict land could find that somebody registers it as common land just as work is about to begin. It could also raise questions about the status of developments that have already been built.

The five year grace period applies to sites where recreational use ceased prior to the act coming into force. For sites that become unused after the legislation comes into force, there is a two-year grace period.

Under case law, a few people using a patch of waste ground to walk their dogs can count as recreational use.

Kate Creer, a partner at law firm DLA Piper, said the act created uncertainty for developers, who now risked prosecution if they built on sites before the grace period had elapsed. The number of applications to register common land has grown in recent years as campaigners have used the law to stop land being developed.

Creer said: “The result of a clumsy attempt to preserve open space is a further obstacle to the supply of new homes.”

She said the grace period was excessive. “Any local people minded to object to the loss of open space are likely to do so the moment they see the land fenced.”

She criticised the legislation’s sponsors at DEFRA. “On the one hand, you have the Treasury saying the planning system is getting in the way of new housing, and on the other you have DEFRA preventing the provision of housing.”

Nicola Hodgson, Open Spaces Society case officer, said: “The new provisions will enable many more applications to succeed, and the land will be protected for use by future generations.”