Village Greens: “Statutory Incompatibility”

December 12th, 2019 by James Goudie KC

In linked appeals R (Lancashire County Council) v SoS for DEFRA and R (NHS Property Services Ltd) v Surrey County Council (2019) UKSC 58, the Supreme Court was primarily concerned with the issue whether the concept of “statutory incompatibility” applies to prevent land from being registered as a village green where it is held for general statutory purposes.

The Lancashire case concerned an area of land which borders a primary School.   Upon an application to register the land as a village green, an Inspector concluded that most of the land should be so registered, rejecting Lancashire County Council’s arguments that the land was held for statutory purposes which were inconsistent with the registration of the land as a village green.  The Council brought a claim for judicial review of this decision, which was unsuccessful in the High Court.

The NHS and Surrey case concerned an area of land, which neighbours an NHS Hospital. An application was made for the land to be registered as a village green. An Inspector was engaged to conduct a non-statutory Inquiry.  Following this Inquiry, the recommendation of the Inspector was that the land should not be registered. This was on the basis that there was no relevant neighbourhood, rather than on the basis of statutory incompatibility.  Despite the Inspector’s views, Surrey County Council nevertheless decided to register the land.  The NHS successfully challenged this registration in the High Court.

The Court of Appeal (2018) EWCA Civ 72l rejected the County Council’s appeal in the Lancashire case and granted the NHS appeal in the Surrey case, such that the registration of both plots of land was upheld. The landowners in both cases appealed to the Supreme Court.

The leading Judgment, allowing, by a majority, the appeals in both cases, was given by Lord Carnwath and Lord Sales, with whom Lady Black agreed. They said that the Inspector’s finding in the Lancashire 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 (“Newhaven”).

The majority’s opinion was that Newhaven authoritatively interpreted the Commons Act 2006 (“the Act”) 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. Here there was an incompatibility between the statutory purposes for which the land is held and use of that land as a green. Therefore the Act is not applicable.

The test set out in Newhaven is not whether the land has been allocated by statute for particular purposes, but rather whether it has been acquired by the public authority pursuant to its statutory powers and is held for the purposes of those powers, where those purposes are incompatible with registration of the land as a green.  Applying the Act as interpreted in Newhaven, Lancashire County Council and the NHS could show that there is statutory incompatibility in each case. In the Lancashire case, the rights claimed pursuant to the registration of the land as a green are 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. The County Council does not need to show they are currently being used for such purposes, only that they are held for such statutory purposes. Similar points apply in the Surrey case. The issue of incompatibility has to be decided by reference to the statutory purposes for which the land is held, not by reference to how the land happens to be used at a particular point in time.

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