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Publicly held land and village greens

Right of Way 34826038 sThe Court of Appeal has handed down a landmark judgment on use of publicly held land. Ashley Bowes, Jonathan Clay and Matthew Lewis consider the implications.

The Court of Appeal has given judgment in the long-awaited co-joined appeals of Timothy Jones v NHS Property Services Ltd & R(Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ. 721.

The central question in both appeals was: when is land held pursuant to statutory provisions exempt from registration as a town or village green under the provisions of s.15 Commons Act 2006?

That question arose from the judgment of the Supreme Court in R(Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7, which found that a stretch of tidal foreshore at Newhaven Harbour was not liable for registration as a new green because of a statutory incompatibility between the public rights of recreation which arose on registration and the duties upon the landowner to maintain a harbor at Newhaven under the provisions of the Newhaven Act 1847.

The High Court had taken two differing approaches to this question, which gave rise to the co-joined appeals. Ouseley J took a narrow view of the principle in Lancashire CC v SSEFRA & Bebbington [2016] EWHC 1238 (Admin.), whereas Gilbart J took a wider view in R(NHS Property Services Ltd) v Surrey County Council & Jones [2016] EWHC 1517 (Admin.).

The landowners in each appeal sought to rely on the application of that principle to land held by an education authority and the National Health Service, respectively. Lindblom LJ (with whom Jackson and Thirwall LJJ agreed) rejected that approach and found at [39] that the approach of Ouseley J in the Lancashire appeal to be "essentially consistent" with the Supreme Court's decision in Newhaven.

The tests of statutory incompatibility are set out by Lindblom LJ at [40] as follows:

(i) There must be "specific" statutory purposes or provisions attaching to [the] particular land [subject to the application]".

(ii) Parliament must have conferred on the landowner powers to use the "... particular land for specific statutory purposes with which its registration as a town or village green would be incompatible".

(iii) So as to "clearly impede", or "prevent" or "restrict" the exercise of any statutory power, or the discharge of any statutory duty, relating specifically to that particular land".

As such, in cases where:

(i) "The statutory powers and duties relied upon were general in their character and content" (at [40]).

(ii) "There was no statutory obligation to maintain or use the land in question in a particular way, or to carry out any particular activities upon it" (at [40]).

(iii) Performance of those general duties "might be or become more difficult or less convenient" but "not that it would be prevented from carrying out any particular statutory function relating specifically to the land whose registration as a town or village green had been applied for" (at [40]).

(iv) Performance of the "... relevant statutory purposes were capable of fulfilment through the county [landowner's] ownership, development and management of its property assets ... without recourse to the land in question ..." (at [40]).

... the principle of statutory incompatibility as identified by the Supreme Court in Newhaven will not arise.

Lindblom LJ also found that:

(i) Small changes to the boundary of a locality were not sufficient to prevent it being relied upon for the purposes of s.15 of the 2006 Act, provided that:

"... [the locality] had existed in some clearly identifiable form throughout, the mere fact that its boundaries had been adjusted in that period would not, of itself, be enough to prevent its existence as a coherent and continuous "locality" at [72].

(ii) There was no requirement for a geographic spread of users across a candidate neighbourhood or locality. In the absence of an express statutory provision, it would amount to an impermissible gloss on the words of the statute. Furthermore, it would be undesirable as a matter of principle:

"This would introduce a further, non-statutory, criterion for registration, which would be highly subjective, uncertain and liable to produce inconsistency – whether or not it was implicit that the spread must be "even" or "uniform" at [78].

(iii) Occasional challenges by the landowner to regulate the use of the land (e.g. asking users to put dogs on leads) did not amount to an implied permission, rather were "merely an attempt to accommodate conflicting uses" at [86].

(iv) A common law duty to supply reasons arises for registering land as a village green contrary to an Inspector's recommendation at [99].

(v) The assessment of whether a neighbourhood is "cohesive" is "a distinctly impressionistic and protean concept, which allows ample scope for differences of judgment" at [104].

This decision underscores the importance of carefully considering the use of land by the public. The effects of long-term toleration of public use can be significant. The decision is currently the subject of an application by NHS Property Services Ltd for permission to appeal to the Supreme Court.

Some practical advice

  • Landowners, even public authority landowners, should always be very wary about allowing unfettered public access to their land.
  • If public use of land is not tolerated, an objection should be clearly communicated. The effects of a suitably worded sign are clearly demonstrated in Winterburn v Bennett [2017] 1 WLR 646.
  • If public use is acceptable for the time being, the public should be clearly told that their use is by permission and that permission may be withdrawn at any time.

Ashley Bowes of Cornerstone Barristers appeared for the successful Appellant, Mr Jones (instructed by Richard Buxton Environmental & Public Law).

Jonathan Clay and Matthew Lewin - both also from Cornerstone - appeared for the Respondent, NHS Property Services Ltd (instructed by Capsticks Solicitors LLP).

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