Town or village green – Registration – Statutory incompatibility – Claimant landowner applying for judicial review of decision by defendant local authority to register land as town or village green – Whether defendants’ decision being legally flawed by failure to consider question of statutory incompatibility – Whether defendants showing no basis for concluding statutory incompatibility – Application granted
The defendant local authority as registration authority, registered land known as Leach Grove Wood, Leatherhead, Surrey as a town or village green, having concluded that the criteria in section 15 of the Commons Act 2006 had been met in that a significant number of the inhabitants of any locality, or neighbourhood within a locality, had indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.
The land was owned by the claimant and held by it for the NHS Surrey Downs Clinical Commissioning Group (CCG), which operated Leatherhead Hospital. It had formed a part of a parcel of land held by one of the various NHS bodies for many years and was held for defined statutory purposes. There had at no time relevant been a general power to hold the land for anything other than statutory purposes.
The claimant had objected to the registration. A non-statutory inquiry was held by an inspector who recommended to the defendants that the application be refused on the basis that the applicant had not identified a “locality” or, alternatively, a “neighbourhood within a locality”. He had rejected the claimant’s case that there was a statutory incompatibility between the statutory purposes for which the land was held and registration. However, the relevant committee of defendants concluded that the relevant criteria had been met, although its reasons for granting the application did not address statutory incompatibility at all.
The claimant applied for judicial review of that decision. The interested party was joined as a supporter of the application for registration in the absence of the original applicant. The claimant contended that the land had been conveyed to it for the specific purposes of the CCG, which was incompatible with registration. Any use outside those purposes was out with the specific statutory powers which applied. In reliance on R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] EGLR 29, it argued that there was an irreconcilable conflict between the purposes for which the land was held and use as a village green. One had to consider the statutory purposes. It was irrelevant that the land was not currently in use.
The defendants contended that there had to be a duty to use land for specific purposes to negate registration. The land had not in fact been used for the claimed statutory purposes.
An issue arose, among other things, whether, given the absence of any consideration or reasoning relating to the question of statutory incompatibility, the defendants had shown that there was no basis for concluding that there was statutory incompatibility.
Held: The application was granted.
(1) As was apparent from section 15 of the Commons Act 2006, if a significant number of the inhabitants of either a “locality” or a “neighbourhood within a locality” were shown to have used the land for informal recreation as of right for a period of at least 20 years before the end date relevant to the application, and the application was made within the relevant period, then the application had to be granted. However, section 15 did not apply to land which had been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which was held for statutory purposes that were inconsistent with its registration as a town or village green.
(2) Given the failure to address the question of statutory incompatibility at all, the decision was legally flawed and the claimant had to succeed unless section 31(2A) of the Senior Courts Act 1981 as amended by Criminal Justice and Courts Act 2015) applied which provided that the court had to refuse to grant relief on an application for judicial review if it appeared to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. The court might disregard those requirements if it considered that it was appropriate to do so for reasons of exceptional public interest.
(3) It followed from the judgments of Lord Neuberger and Lord Hodge in Newhaven that one had to consider the actual statutory powers under which the land was held. The fact that in some cases parcels of land belonging to some statutory bodies had been registered did not give rise to a rule that any land held by a statutory body could be registered. It was not necessary that the land in question was used for a purpose incompatible with use as a village green. What mattered was whether, as a matter of statutory construction, the relevant statutory purpose was incompatible with registration: Lancashire County Council v Secretary of State for the Environment and Rural Affairs [2016] EWHC 1238 (Admin); [2016] PLSCS 168 considered.
(4) Statutory powers were not identical across the range of statutory bodies. In the present case, there was no general power in any of the relevant bodies to hold land. Land could only be acquired or held for the purposes defined in the relevant Acts. The defined statutory purposes did not include recreation or anything outside the purview of the purposes of providing health facilities. No-one had suggested that the land in its current state would perform any function related to those purposes, and the erection of buildings or facilities to provide treatment, or for administration of those facilities, or for car parking to serve them, would plainly conflict with recreational use. It was irrelevant that the land had not in fact been used for hospital related purposes. The question to be determined was only whether there was incompatibility as a matter of statutory construction. If the land was in fact surplus to requirements, the use of the Commons Act 2006 was not the remedy. There was a conflict between the statutory powers in this case and registration.
(5) Accordingly, the claimant’s application succeeded. The defendants’ committee never considered the question of statutory incompatibility and gave no reasons for rejecting the claimant’s case as an objector. In any event, the objection on the grounds of statutory incompatibility was well founded and section 31(2A) of the 1981 Act did not apply.
Jonathan Clay and Matthew Lewin (instructed by Capsticks LLP, of Wimbledon) appeared for the claimant; Douglas Edwards QC and Katherine Barnes (instructed by Surrey County Council) appeared for the defendants; Dr Ashley Bowes (instructed by Direct Access) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of NHS Property Services Ltd) v Surrey County Council.
