In December 2019, the Supreme Court decided the cases of R (on the application of Lancashire Country Council v Secretary of State and R (on the application of NHS Property Services Limited) v Surrey County Council.
Both were appeals from decisions of lower courts that were heard together given that they both related to the registration as a town or village green of land held for statutory purposes.
Statutory background and the Newhaven case
A town or village green (‘TVG’) does not have to look like a TVG to be registered as such; the statutory test is whether the public have, as of right and without any objection or permission from the owner, used the land for lawful sports and pastimes for at least 20 years. Once registered, the land is subject to a right for the public to use that land for those purposes, making development much more difficult.
The principal case under the Commons Act 2006 is R (on the application of Newhaven Port & Properties Limited v East Sussex County Council (2015), also decided by the Supreme Court. There, the Court held that where land was held pursuant to a statutory purpose – in that case, as an operational port – and where the statutory purpose is incompatible with the public having rights to use it for leisure, then the land cannot be registered as a town or village green. The case established that even if the conditions for registration as a TVG had otherwise been met, the specific statutory purpose Parliament determined for the land effectively trumps the more general right to apply to register the land as a TVG.
The Lancashire case
The Lancashire case involved a number of parcels of land adjoining a primary school and falling between three housing estates in south Lancaster. They were not used as part of the operation of the school, and had reportedly been used by residents for leisure for over 50 years. Fears of redevelopment led a local campaign group to successfully register the land as a town and village green in 2008.
The Council, which owned the land along with the adjoining school, appealed against the registration, ostensibly on grounds that the land may be required for future expansion of the school, but both the High Court and the Court of Appeal had upheld the registration of the land as a town or village green.
The NHS case
The NHS case involved three hectares of woodland in Surrey, which adjoined a hospital but was not used as part of the hospital and which had similarly been used by the public for leisure purposes for many years. The County Council had accepted the registration of the land as a town or village green, which the NHS successfully challenged in the High Court; the County Council appealed.
The Court’s decision
The Supreme Court has in both cases rejected the registration of the land as town or village greens on grounds of statutory incompatibility, i.e. the registration of the land as a town or village green is incompatible with the statutory purpose for which the land is held. In doing so, these cases take the principle of “statutory incompatibility” further by establishing that there is no need for the land to actually be used for those statutory purposes (as it was in Newhaven, but wasn’t in Lancashire or NHS); what matters is that the land was acquired for those statutory purposes and continues to be held for those purposes.
Wider implications
As all or most land held by public or statutory bodies will be held for one statutory purpose or another, there is a concern – as one of the dissenting judges gave voice to - that these cases effectively make all or most land held by those bodies immune to a town and village green application, significantly narrowing the scope of the Commons Act 2006 beyond what Parliament can have intended; if it was Parliament’s intention for such land to be beyond the reach of the Commons Act 2006, then arguably it would (or should) have said so in the Act. There may therefore be more cases to come in this area which further clarify the law, and which possibly seek to row back from Lancashire and NHS to a more balanced position.
Until then, however, the decisions in these cases may give some comfort to public and statutory bodies that land acquired for statutory purposes is now virtually safe from a town and village green registration, even if that land is not for the moment used for that specific purpose, and even if the public are and have been using the land for sports and pastimes for more than 20 years (although we would suggest it would still be worth taking steps to mitigate the risks associated with that, such as erecting appropriate signage in prominent locations).
For public or statutory bodies whose land has already been subject to town and village green registrations under the Commons Act 2006, these decisions may also mean it is now worthwhile reviewing the circumstances of those registrations and considering making an application to de-register.
