On 11 December 2019, the Supreme Court handed down its decision in the conjoined appeals of R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another, and R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another [2019] UKSC 58.
This article is taken from December's public matters newsletter. Click here to view more articles from this issue.
On 11 December 2019, the Supreme Court handed down its decision in the conjoined appeals of R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another, and R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another [2019] UKSC 58.
Both appeals related to decisions to register land held by public authorities as village green land under the Commons Act 2006 (‘the Act’). The effect of registration is that the land in question would be subject to public rights attaching to a village green (preventing the public authority landowners from, inter alia, restricting public access, developing or enclosing the land).
The Lancashire appeal related to four parcels of land broadly adjacent to Moorside Primary School (which, coincidentally, your author attended) in Lancaster. A local resident applied to have those parcels of land plus a fifth registered as a village green under the Act. As the county of Lancashire is part of a pilot scheme, this application was considered by an independent inspector. The inspector determined that four of the five parcels should be registered as village greens. The County Council - who had opposed this registration on the basis that the land was needed for educational purposes such as playing fields and school expansion, and that registration would prevent this use - judicially reviewed the inspector’s decision. The County Council was unsuccessful in both the High Court and a subsequent appeal to the Court of Appeal. The County Council appealed to the Supreme Court.
The Surrey case related to land held by NHS Property Services for a hospital in Surrey. The local authority, Surrey, granted an application for registration of the land, but the High Court quashed the registration, finding that the local authority had failed to properly consider the question of statutory incompatibility. Surrey appealed to the Court of Appeal, which heard the case with the Lancashire case and upheld the appeal. NHS Property Services appealed to the Supreme Court.
Central to the Supreme Court’s determination of the matter was interpretation of a previous Supreme Court judgment on village greens and statutory incompatibility, given just four years earlier, in the case of R. (on the application of Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7, [2015] A.C. 1547, [2015] 2 WLUK 801 (‘Newhaven’).
In finding for the Appellants on overturning the decision of the Court of Appeal, the majority (three) of the court found that Newhaven should be interpreted as finding that land which was acquired and held by a local authority in exercise of general statutory powers should not be registered as a village green where the use of that land as a village green was incompatible with the use for which it was acquired. The test in Newhaven was not whether the land had been allocated by statute itself for particular statutory purposes, but whether it had been acquired for such purposes and was for the time being so held.
In two powerful dissenting judgments, Lady Arden and Lord Wilson rejected the analysis of the majority. Neither believed the test could be a purely legal one, as advocated by the majority, and must include an application of the factual picture. Lady Arden believed that the land in question must be shown to be used, or reasonably foreseeable as being used, in a way that would be incompatible with the public rights acquired by registration as a village green. Lord Wilson believed that Newhaven provided an exception to the general rules of registration for village greens under the Act and cautioned against interpreting exceptions too widely. Lord Wilson did not believe that the educational and health purposes for which land might be held were incompatible with the general provisions of the Act.
The decision is likely to have far reaching consequences in the sphere of village greens. Given that much of the land which might have been amenable to registration as a village green is likely to be held by public authorities, the reach of the Act going forwards is substantially reduced. All public authorities must now do to defeat a registration is show that the general statutory purpose for which the land was acquired is incompatible with registration as a village green. This will be much easier to do than showing that such land is in fact being used, or it is reasonably foreseeable that it will be used, for purposes which are incompatible with registration as village green. Moreover, in principle public authorities may now be able to review land previously registered as a village green and look to deregister it in light of the judgment. This is however unlikely to be a simple process and may be subject for further judicial treatment.
For these reasons, the decision is also likely to be a controversial one. This, and the fact that the senior courts have now grappled with this issue on multiple occasions, indicate that this may not be the last clarification of the law on village greens and statutory incompatibility.
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
In ‘failure to remove’ claims, the claimant alleges abuse in the family home and asserts that the local authority should have known about the abuse and/or that they should have removed the claimant from the family home and into care earlier.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
Updates include UK Shared Prosperity Fund, contracts, Subsidy Control Bill, data controller liability, Government Covid-19 procurement and Highway Code revisions.
The complex and rather nebulous transitional subsidy control regime set out in the UK-EU Trade and Co-operation Agreement and the UK’s wider international commitments has made it difficult for public authorities and those working with them to proceed with certainty where subsidies are involved.
Investment zones have been introduced by the Conservative party to get the United Kingdom (UK) ‘working, building and growing’. They are to be designated sites which provide time-limited tax incentives, streamlined planning rules and wider support for local growth to encourage investment and accelerate the development of housing and infrastructure that the UK needs to drive economic growth. Processes and requirements that slow down development will be stripped back with the intention of attracting new investment.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The Procurement Bill (the Bill) has now been with us for about four months, during which time there have been a huge number of amendments proposed in the House of Lords (circa 320). Lately, there has been less mention of it — unsurprising, really, given everything else going on in politics recently — but here’s a summary of some of the key issues and themes so far.
Browne Jacobson has been named as a supplier on Crown Commercial Service’s (CCS) Public Sector Legal Services Framework on Lot 1a – full-service provision (England and Wales) and Lot 2a – general service provision (England and Wales).