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R (on the application of Lancashire CC) v Secretary of State for the Environment, Food and Rural Affairs; R (on the application of NHS Property Services Ltd) v Surrey CC [2019] UKSC 58

6 January 2020

Two areas of land held by public authorities for statutory purposes could not be registered as town or village greens due to statutory incompatibility.

Facts

This case concerned two similar appeals heard together by the Supreme Court.

In the first case, the local authority (LA) held land adjacent to a primary school. It objected to the land’s registration as a town or village green (TVG), arguing that, in exercise of its statutory powers as education authority, the land was acquired for and remained appropriated to educational purposes.

In the second case, NHS Property Services Ltd (NHS) owned an area of woodland adjoining a hospital. It objected to the land’s registration as a TVG, arguing that the land was held for future statutory clinical and healthcare purposes which were inconsistent with use of the land as a TVG.

Both parties’ arguments were based on the Supreme Court’s decision in R (on the application of Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7 (the Newhaven Case). In that case, the Supreme Court had held that a beach within a working harbour could not be registered as a TVG and that section 15 of the Commons Act 2006 (CA 06) (the relevant statutory provision dealing with registration of land as a TVG) did not apply to land acquired by a statutory undertaker and held for specific statutory purposes that were inconsistent with registration as a TVG.

Issue

Did the statutory incompatibility test introduced by the Newhaven Case apply to these cases (unlike in the Newhaven Case where the land in question fell within a working harbour, in both of these cases most of the land in question was not actually being used for the relevant general statutory purposes for which the land was held)?

Decision

The Supreme Court held (by a majority of 3 to 2) that where there is an incompatibility between the general statutory purposes for which land is held and use of the land as a TVG, then the provisions of the CA 06 do not apply to that land. The test is not whether the land has been allocated by statute itself for particular statutory purposes, but rather whether it has been acquired in general for statutory purposes (compulsorily or by agreement) and is for the time being so held. Moreover, it did not matter how the land in question happened to be used at a particular time. All that matters is the general statutory purpose for which the land is held.

In the first case, registration as a TVG was incompatible with the use of the land as playing fields or for the construction of new buildings given that the LA had a duty to safeguard children and to protect them from strangers and health risks. Similarly, in the second case, registration was incompatible with the NHS’s statutory functions, such as the erection of buildings or facilities to provide treatment or the construction of hard standing to provide car parking. As a result, neither piece of land was registrable as a TVG.

Points to note/consider

  1. Under section 15 of the CA 06, anyone can apply to register land as a TVG where:

    “a significant number of the inhabitants of any locality….have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years".

    When applying that statutory provision to land held by a public authority for a statutory purpose, the Supreme Court concluded that Parliament must have intended that the general public interest in registering land as a TVG would be outweighed by the specific public interest as shown by the particular statutory power under which the land was held.

  2. Applying to register land as a TVG has for a number of years now been a favourite tactic of those wishing to object to the development of land. However, following this decision, members of the public are likely to find it very difficult to register land as a TVG (even though the land in question may have been used for recreational pastimes over many years) where that land is held by a public authority for a general statutory purpose. Indeed, it may well be the case that public authorities will seek to question whether their land had been correctly registered as a TVG in the past.

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