Town and Village Greens

July 20th, 2016

The importance of giving reasons for a decision to register land as a village or town green under Section 15 of the Commons Act 2006 has been emphasized by Gilbart J in R (NHS Property Services Ltd) v Surrey County Council (2016) EWHC 1715 (Admin), in which NHS Property Services Ltd (“NHS”) sought judicial review of a decision by the County Council to register a parcel of woodland (“the land”) as a village green.  The case is also of importance in relation to the question whether there is a statutory incompatibility with registration.

At all relevant times, the land had formed part of the land held by one of the various NHS bodies. The land was held for defined statutory health-related purposes. However, it had not to date been used for such purposes.  The local authority granted an application to register the land as a town or village green, having concluded that the criteria in the Act were met.  Those criteria were that “a significant number of the inhabitants of any locality, or neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.  The claimant had objected to the application, arguing, among other things, that there was an incompatibility between the statutory purposes for which the land was held and registration as a green.

Gilbart J held that:

  1. The giving of reasons was required to achieve compliance with ECHR Art 6, which was engaged as registration involved a determination of civil rights and obligations. Common law also required the giving of reasons. A landowner was at risk of losing his freedom to do as he wished with his land and needed to know whether the decision to register was made on lawful grounds and whether there were grounds for challenging it.
  2. The starting point was that the reasons given had to be intelligible and deal adequately with the substance of the arguments advanced. The local authority would need to set out whether the applicant for registration had shown that the criteria had been met and why the criteria had been met or not. In a case where an objection had been made on a ground known to law, the local authority should state whether that objection was well founded and why it was or was not well founded. The losing party should be left knowing why he had lost and the legal justification for rejecting his submissions.
  3. The claimant’s objection to registration on the basis of statutory incompatibility was well founded. It was not necessary that the land in question was incompatible with registration. Here it was. The erection of buildings or facilities to provide treatment, or the erection of buildings for the administration of those facilities, or the creation of car parking, would plainly conflict with recreational use.

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