Supreme Court allows appeals by land-owning public bodies in dispute over statutory incompatibility and village green registration

The Supreme Court has by a 3-2 majority allowed appeals by Lancashire County Council and NHS Property Services over whether statutory incompatibility defeats an application to register land as a town or village green where the land is held by the public authority for statutory purposes.

The two appeals of R (on the application of Lancashire County Council) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs and another (Respondents) R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another (Respondents) [2019] UKSC 58 concerned:

1. Land, divided into five areas, adjacent to Moorside Primary School in Lancaster and owned by Lancashire County Council. A local resident applied to register the land as a green based on 20 years’ qualifying use. Lancashire objected on the basis that the land was acquired and remains appropriated for education purposes under the county council’s statutory powers as education authority. An inspector appointed by the Secretary of State determined that four of the five areas should be registered. She was not satisfied that the land was in fact acquired and held for education purposes and, even if it had been, there was no good statutory incompatibility defence available to Lancashire. The inspector’s determination was upheld by Ouseley J in the High Court on the council’s application for judicial review.
2. A site at Leach Grove Wood in Leatherhead owned by NHS Property Services. An application was made to register the site as a green, relying on use over a period of 20 years. An inspector recommended refusal of registration, but the registration authority, Surrey County Council, did not accept this and registered the land. On the NHS’s application for judicial review in the High Court, Gilbart J distinguished the judgment of Ouseley J and quashed the registration on the basis that Surrey had failed properly to consider statutory incompatibility.

The appeals were heard together by the Court of Appeal, which upheld the decision to register in both cases. Lancashire and the NHS appealed to the Supreme Court.

[What follows is the Supreme Court’s press summary]

By a majority, the Supreme Court allowed the appeals in both cases. Lord Carnwath and Lord Sales give the majority judgment, with which Lady Black agreed. Lady Arden gave a partly dissenting judgment and Lord Wilson gave a dissenting judgment.

Lord Carnwath and Lord Sales said the inspector’s finding in the Lancaster case that the land was not acquired and held pursuant to statutory education purposes was inconsistent with the evidence and irrational.

Therefore the central issue in both the cases under appeal was the interpretation and application of the statutory incompatibility ground of decision identified in the majority judgment in the Supreme Court in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7. 

The majority’s opinion was that Newhaven authoritatively interpreted the Commons Act 2006 to mean that where land is acquired and held for defined statutory purposes by a public authority, the Act does not enable the public to acquire rights over that land by registering it as a green where such registration would be incompatible with those statutory purposes.

Lord Carnwath and Lord Sales said the appeals should be allowed in both cases. “On a true reading of the majority judgment in Newhaven on the statutory incompatibility point, the circumstances in each of these cases are such that there is an incompatibility between the statutory purposes for which the land is held and use of that land as a town or village green. This has the result that the provisions of 2006 Act are, as a matter of the construction of that Act, not applicable in relation to it.”

They added that the test set out in Newhaven was not whether the land had been allocated by statute for particular purposes, but rather whether it had been acquired by the public authority pursuant to its statutory powers and was held for the purposes of those powers, where those purposes were incompatible with registration of the land as a green.

Lord Carnwath and Lord Sales described the reference to acquisition by both voluntary sale and compulsory purchase as “significant”, since acquisition by voluntary sale would typically involve the exercise of general statutory powers rather than specific statutory provisions framed by reference to the land itself.

This construction of the Act by the wider reasoning of the majority in Newhaven was unsurprising, they said. “It would be a strong thing to find that Parliament intended to allow use of land held by a public authority for good public purposes defined in statute to be stymied by the operation of a subsequent general statute such as the 2006 Act. There is no indication in that Act, or its predecessor, that it was intended to have such an effect.”

This general point could be made “with particular force” in relation to land held pursuant to the exercise of statutory compulsory purchase powers, since such powers are “generally only created for use in circumstances where an especially strong public interest is engaged” that land should be used for particular purposes, such as is capable of justifying compelling a land-owner to sell their land against their wishes.

Applying section 15 of the 2006 Act as interpreted in Newhaven, Lancashire and the NHS could show that there was statutory incompatibility in each case. In the Lancaster case, the rights claimed pursuant to the registration of the land as a green were incompatible with the use of the relevant areas for education purposes, including for example use of them as playing fields or for constructing new school buildings. Lancashire did not need to show they were currently being used for such purposes, only that they were held for such statutory purposes.

Similar points applied in the Surrey case: the issue of incompatibility had to be decided by reference to the statutory purposes for which the land was held, not by reference to how the land happened to be used at a particular point in time.

Lady Arden disagreed with the reasoning of the majority. She would have allowed the appeals save that she would have dismissed the appeal in relation to two of the areas of the Lancashire site and remitted the matter to the registration authority in the Surrey appeal.

In Lady Arden’s view, the fact that a public authority held land for statutory purposes that were incompatible with the use of the land as a green was not of itself sufficient to make the land incapable of being registered. “It must be shown that the land is in fact also being used pursuant to those powers, or that it is reasonably foreseeable that it will be used pursuant to those powers, in a manner inconsistent with the public’s rights on registration as a TVG.”

Lord Wilson dissented from the majority and would have dismissed both appeals. The Act’s reach was substantially reduced if land held by public authorities for specified statutory purposes were to be immune from registration as a green that could theoretically be incompatible with those purposes, he said.

Lord Wilson added that Newhaven was concerned with statutes that conferred specific duties in relation to particular land. Those specific duties were incompatible with the general provision in the Act which therefore had to give way.

“By contrast, statutory provisions which confer power to acquire and hold land, not there identified, for educational and health purposes, such as are in play in the present appeals, cannot be said to be incompatible with the general provision in the 2006 Act which, on the face of it, permits registration of the respective parcels of land as greens," he said.