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Public authorities, statutory powers and village greens

Francis Taylor Building comments on a Supreme Court judgment on village greens that will prove hugely significant for landowning public bodies.

The Supreme Court has this month given judgment in the combined appeals by Lancashire County Council and NHS Property Services Limited.

In R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another, and R (NHS Property Services Ltd) v Surrey County Council and another (conjoined appeals) [2019] UKSC 58 Lord Carnwath, Lord Sales and Lady Black JJSC, who comprised the majority of the constitution, held that land owned by the two public authorities cannot be registered as town or village green (TVG) under the Commons Act 2006 because the land was held by the authorities for defined statutory purposes under general acts of parliament, and registration as TVG would be in conflict with those statutory purposes. This is known as the principle of ‘statutory incompatibility’. The Court of Appeal’s decision on both appeals was overturned.

The principle may not only affect registration of public land as TVG, but also affect the possibility of other public and private rights, such as rights of way, being created over public authority land which is held for a particular statutory purpose, if the existence of those rights would conflict with the statutory purposes for which the land is held by the public authority.

This decision follows the court’s earlier decision in Newhaven Port & Properties [2015] AC 1547, in which TVG registration of land owned by a harbour authority was found to be unlawful because it would conflict with defined statutory purposes arising from the private local act of parliament under which the port was operated.

Lord Wilson JSC gave a dissenting judgment; Lady Arden JSC gave a partially dissenting judgment.

Lancashire CC held land, which comprised playing fields used by Moorside Primary School, Lancaster and adjacent land, for statutory education purposes. NHS Property Services held land, adjacent to Leatherhead hospital, for statutory health purposes. In both cases local residents had applied for the land in question to be registered as TVG. An Inspector appointed by the Secretary of State had decided that the Lancashire land should be registered, and Surrey County Council had decided that the NHS land should be registered.The effect of registration of TVG would have been to prevent the authorities from using their land for many of the statutory purposes for which it was held, for example building school or hospital buildings. 

The majority of the court held that TVG registration, and the rights which it conferred on local residents to use land for recreation in perpetuity, were “...incompatible with the use of any of [the land] for education purposes, including for example construction of new school buildings or playing fields. It is not necessary for Lancashire County Council to show that they are currently being used for such purposes, only that they are held for such statutory purposes… The Commons Act 2006 was not intended to foreclose future use of the land for education purposes to which it is already dedicated as a matter of law”. Similar points arose in the NHS case, according to the Justices. 

The majority of the court considered that this was the proper interpretation of the Commons Act 2006 and its relationship with other primary legislation, not least because:

“...the 2006 Act ...contains no provision pursuant to which a public authority can buy out rights of user of a town or village green arising under that Act in relation to land which it itself owns. That is so however strong the public interest may now be that it should use the land for public purposes. Since in such a case the public authority already owns the land, it cannot use any power of compulsory purchase to eradicate inconsistent rights and give effect to the public interest, as would be possible if the land was owned by a third party. Although section 16 of the 2006 Act makes specific provision for “deregistration” of a green on application to the “appropriate national authority”… [that procedure] is not designed to give effect to the public interest reflected in specific statutory provisions under which the land is held. Often it will be impossible in practice for a public authority to make a proposal to provide replacement land as required to bring section 16 into operation. Again, it would be surprising if Parliament had intended to create the possibility that the 2006 Act should in this way be capable of frustrating important public interests expressed in the statutory powers under which land is held by a public authority, when nothing was said about that in the 2006 Act.”

Lord Wilson dissented from the majority view because he considered that the statutory incompatibility principle was only engaged where an Act of Parliament identified the land to which the relevant statutory duties applied, as had been the case in the Newhaven decision. Lady Arden’s partially dissenting judgment concentrated on what she regarded as the need to assess, as a matter of fact, whether the land in question was being used pursuant to the relevant statutory powers, or whether it was reasonably foreseeable that the land would be used pursuant to those powers, in a manner inconsistent with the public rights which resulted from TVG registration.

The principle in the Lancashire/NHS decision as decided by the majority of the Court will apply to land which is held by public authorities, where it can be shown that such land is held for a particular purpose defined by statute. It is the existence of a statutory purpose for holding land, and statutory duties to use that land for particular purposes, which engages ‘statutory incompatibility’.

In the Lancashire appeal, Douglas Edwards QCJeremy Pike and Daisy Noble of Francis Taylor Building appeared for the successful Appellant Lancashire County Council. Ned Westaway, also of FTB, appeared for the Second Respondent.

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