R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs; R (on the application of NHS Property Services Ltd) v Surrey County Council – Town or village green – Registration – Statutory incompatibility – Local authorities owning land subject to applications for registration as town or village green – High Court dismissing first application but granting second application – Whether concept of “statutory incompatibility” defeating application for registration – Court of Appeal upholding registration of both plots of land – Appellant landowners appealing – Appeals allowed by majority
In the first appeal, the first respondent secretary of state granted an application under section 15 of the Commons Act 2006 for the registration of Moorside Fields, in Lancaster, as a town or village green. The land was adjacent to a primary school and was owned by the appellant local education authority which objected. The inspector, appointed by the respondent to determine the application, concluded that the land should be added to the register of town and village greens. The appellant’s argument that the land was held for statutory purposes which were inconsistent with registration as a village green was rejected. The appellant’s challenge to that registration was dismissed: [2016] EWHC 1238 (Admin); [2016] PLSCS 168.
The second appeal concerned land at Leach Grove Wood in Leatherhead, which neighboured an NHS hospital. An application was made for the land to be registered as a village green and an inspector conducted a non-statutory inquiry. The inspector recommended that the land should not be registered on the basis that there was no relevant neighbourhood rather than on the basis of statutory incompatibility. Despite the inspector’s views, the respondent local authority registered the land and the appellant successfully challenged that registration in the High Court: [2016] EWHC 1715 (Admin); [2016] PLSCS 206.
The cases were linked on appeal as they both related to the circumstances in which statutory incompatibility would defeat an application for registration where the land was held by a public authority for statutory purposes. The Court of Appeal rejected the appellant’s appeal in the first case and granted the respondent’s appeal in the second case, such that the registration of both plots of land was upheld: [2018] EWCA Civ 721; [2018] PLSCS 70. The appellant landowners in both cases appealed to the Supreme Court.
Held: The appeal was allowed (by a majority) (Lady Arden partly dissenting. Lord Wilson dissenting).
(1) The court’s task in the present appeal was simply to interpret the majority judgment in the Supreme Court in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] EGLR 29 and apply it to the facts. That judgment authoritatively interpreted the 2006 Act to mean that, where land was acquired by a public authority and held for defined statutory purposes by that authority, the Act did not enable the public to acquire rights over that land by registering it as a town or village green where such registration would be incompatible with those statutory purposes. The balance between the interests of landowners and those claiming recreational rights had to be respected. On a true reading of the majority judgment in Newhaven on the statutory incompatibility point, the circumstances in the present cases were such that there was an incompatibility between the statutory purposes for which the land was held and use of that land as a town or village green. Accordingly, the provisions of 2006 Act were, as a matter of the construction, not applicable in relation to it.
(2) Applying section 15 of the 2006 Act, as interpreted in Newhaven, the appellants could show that there was statutory incompatibility in each of their respective cases. As regards the land held by the appellant in the first case for use for education purposes, the rights claimed pursuant to the registration of the land as a town or village green were incompatible with the statutory regime under which such use took place. More generally, such rights were incompatible with the use of any of the land for education purposes, including construction of new school buildings or playing fields. It was not necessary for the appellant to show that the land was currently being used for such purposes, only that it was held for such statutory purposes. The 2006 Act was not intended to foreclose future use of the land for education purposes to which it was already dedicated as a matter of law. Similar points applied in the second case. The issue of incompatibility had to be decided by reference to the statutory regime which was applicable and the statutory purposes for which the land was held, not by reference to how the land happened to be being used at any particular point in time.
(3) The test as stated in Newhaven was not whether the land had been allocated by statute itself for particular statutory purposes, but whether it had been acquired for such purposes (compulsorily or by agreement) and was for the time-being so held. An incompatibility between general statutory powers under which land was held by a statutory undertaker (or a public authority with powers defined by statute) and the use of such land as a town or village green excluded the operation of the 2006 Act. The proper inference as to Parliament’s intention was that the general public interest, in the preservation of open spaces which had for many years been used for recreational purposes, would be outweighed by the specific public interest which found expression in the particular statutory powers under which the land was held. That general point could be made with particular force in relation to land purchased using compulsory purchase powers set out in statute. Such powers were generally only created for use in circumstances where an especially strong public interest was engaged, such as could justify the compulsory acquisition of property belonging to others. It seemed highly unlikely that Parliament intended that public interests of such a compelling nature could be defeated by the operation of the general provisions in the 2006 Act.
In the first appeal: Douglas Edwards QC, Jeremy Pike and Daisy Noble (instructed by Sharpe Pritchard LLP) appeared for the appellant; Tim Buley QC (instructed by the Government Legal Department) appeared for the first respondent; Ned Westaway (instructed by Harrison Grant) appeared for the second respondent. In the second appeal: George Laurence QC, Jonathan Clay and Simon Adamyk (instructed by Womble Bond Dickinson (UK) LLP, of Newcastle) appeared for the appellant; Dr Ashley Bowes (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the respondent.
Eileen O’Grady, barrister
