The law on town and village greens is still developing. New points crop up regularly and are often pursued all the way to the highest court in the land. In R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council and another [2015] UKSC 7; [2015] EGLR 29 the Supreme Court endorsed a concept that is already proving controversial. That concept, which could have far-reaching application, is that section 15 of the Commons Act 2006, which enables land to be registered as a green, does not apply to land held by public bodies for specific statutory purposes that are incompatible with the town and village green regime.
Many local authorities hold land for statutory purposes and, although the court made it clear that the fact that an authority may have statutory powers to develop land will not, of itself, cause statutory incompatibility, the decision left us wondering how widely the doctrine applies. We did not have to wait long for cases testing its scope.
Education
The judge who dealt with Lancashire County Council v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 1238 (Admin) heard the case at first instance in Newhaven. He found this the most difficult of the issues to be resolved in that case. However, he came to the conclusion – with which the Court of Appeal unanimously disagreed, but the Supreme Court subsequently agreed – that Newhaven beach was not registrable as a green because of the conflict between the statutory regimes that governed the operation of Newhaven harbour and the use of a green.
What then did Ouseley J make of the arguments based on statutory incompatibility in the case of undeveloped land adjoining a primary school? The county council that owned the land claimed that registration would prevent it from using any part of the land to provide a new school or to construct new facilities because it would be a criminal offence to use it for purposes that were inconsistent with its use as a green. Furthermore, the primary school would be unable to hold open-air classes or to use the land for recreation and play because the presence of members of the public would prevent the school from fulfilling its duty to safeguard pupils.
The judge was unimpressed. In a passage of his judgment that was obiter (because there was insufficient evidence to show that the council actually held the land for educational purposes), he distinguished between a specific statutory function, which requires the use of specific identifiable land, and a general statutory function, which can be performed more or less conveniently without the land in question. The beach in Newhaven had been central to any changes that might be needed to the way in which the port operated. By contrast, although the loss of the land in Lancashire might be inconvenient, it could not be said that it was central, or even significant, to the performance of the council’s general educational duties.
Health
R (on the application of NHS Property Services Ltd) v Surrey County Council [2016] EWHC 1715 (Admin); [2016] PLSCS 206 was decided soon afterwards. It establishes that registration authorities must give adequate and intelligible reasons for upholding applications to register land as a green even though there may be no statutory requirement to do so, because landowners are entitled to understand why they lost their battle to prevent registration. More importantly, for the purposes of this legal note, how did the judge approach the question of statutory incompatibility?
The case concerned woodland, which was an attractive location for walking and recreation. It formed part of a landholding related to the Leatherhead Hospital and was vested in the NHS for statutory health-related purposes. The judge ruled that what mattered was whether use of the land for the statutory purposes for which it was being held would be incompatible with registration as a green.
Gilbart J explained that a case-by-case analysis is required and that Lancashire concerned a different public body with different statutory powers. It was easy to think of functions in the realm of education that enable land to be set aside for recreation. By contrast, the statutory purposes for which the NHS held the land in this case did not extend beyond the provision of health facilities. The erection of buildings or facilities to provide health treatment or ancillary parking would plainly conflict with use as a green. Therefore, the statutory regime that governed the use of the land was incompatible with the town and village green regime.
Incompatibility
In Lancashire, Ouseley J suggested that there would need to be a close relationship between performance of a statutory function and use of the application land for the doctrine of statutory incompatibility to apply. He added that this would be a hard test to satisfy in the case of public bodies with general functions that do not specifically, or in reality, have to be performed on the land in question. One wonders what the result would have been had this test been applied in NHS Property Services, and what approach the courts will favour going forward.
Understanding the scope of the doctrine is essential, since the question of statutory incompatibility is likely to arise in many more cases where land is owned by public bodies. Consequently, we are likely to hear more on this subject in the future.