Town or village green – Registration – Statutory incompatibility – Local authorities in two separate cases 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 the registration of land as a town or village green under section 15 of Commons Act 2006 – Appeal dismissed in first case – Appeal allowed and cross-appeal dismissed in second case
In the first appeal, the respondent secretary of state granted an application by the interested party 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 county council which, as local education authority, objected. The inspector, appointed by the respondent to determine the application in a “pilot” scheme under the Commons Registration (England) Regulations 2008, concluded that the land in question should be added to the register of town and village greens. The appellant challenged the registration by an application for judicial review which was dismissed: see [2016] EWHC 1238 (Admin); [2016] PLSCS 168. The appellant appealed.
In the second appeal, the first respondent, a company wholly owned by the Secretary of State for Health, challenged the registration by the second respondent county council, of land at Leach Grove Wood in Leatherhead as a village green. The land adjoined a hospital and was in the same freehold title. The application for registration was made by the appellant interested party and others. The inspector rejected the first respondent’s objection that the land was not registrable on the grounds of “statutory incompatibility” but found that there was no “locality” or “neighbourhood”, within section 15 of the 2006 Act. Despite his recommendation that the application for registration be refused, the registration was made. The High Court upheld the first respondent’s application for judicial review. The judge found that the second respondent’s reasons were adequate but concluded that it had failed properly to consider the question of “statutory incompatibility”: see [2016] EWHC 1715 (Admin); [2016] PLSCS 206.
The appellant appealed against the decision on statutory incompatibility, and the first respondent cross-appealed against the decision on the adequacy of reasons. The second respondent took no part in the appeal but did not concede that it made any error of law.
Held: The appeal was dismissed in the first case. The appeal was allowed and the cross-appeal was dismissed in the second case
(1) The relevant legal principles were set out in the Supreme Court judgments in R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] EGLR 29. The court’s task here was to apply them to the relationship between the provisions of the 2006 Act concerning the registration of town and village greens and the statutory powers and duties relating to the land in question. The issue was one of statutory construction.
Crucially, in the first appeal, as a matter of statutory construction, there was no inconsistency of the kind that arose in Newhaven between the provisions of one statute and another. The statutory purpose for which Parliament had authorised the acquisition and use of the land and the operation of section 15 of the 2006 Act were not inherently inconsistent. By contrast with Newhaven, there were no “specific” statutory purposes or provisions attaching to the land. Parliament had not conferred on the appellant, as local education authority, powers to use the land for specific statutory purposes with which its registration as a town or village green would be incompatible. This was not analogous to the situation referred to in Newhaven. The statutory powers and duties relied upon were general in their character and content, comprising a local education authority’s functions in securing educational provision in its area. There was no statutory obligation to maintain or use the land in a particular way or to carry out any particular activities upon it. The basis of the asserted incompatibility between section 15 of the 2006 Act and the provisions of the Education Acts on which the appellant sought to rely could only be that the carrying out of its general obligations to provide schools in its area might be more difficult or less convenient. The fact that the appellant, as owner of the land, had statutory powers to develop it was not sufficient to create a “statutory incompatibility”. The relevant statutory purposes were capable of fulfilment through the appellant’s ownership, development and management of its property assets as a local education authority without recourse to the land in question. The registration of the land as a town or village green would not be at odds with those statutory purposes: R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] EGLR 29 applied.
A similar analysis applied in the second appeal because the circumstances of the two cases were, in all material respects, parallel. As in the first appeal, as a matter of “statutory construction”, the court was not compelled to find an incompatibility between the statutory provisions under which the land at Leach Grove Wood was held and its registration as a village green under section 15 of the 2006 Act. There was no inherent inconsistency between the provisions in the statutory regime under which the land was held and the statutory provisions for registration. The two cases were indistinguishable in that respect. The registration of the land as a green under section 15 of the 2006 Act would not, in itself, have any material effect on the first respondent’s function under section 223(1) of the National Health Service Act 2006. Beyond their general application to land and property held by the first respondent, none of those statutory functions could be said to attach in some specific way to the particular land. The judge in the first appeal had been correct on the issue of statutory incompatibility and the appeal was dismissed. The judge in the second appeal had been wrong and the appeal succeeded.
(2) The second respondent in the second appeal had been under a duty at common law to give reasons for its decision to register the land though no such duty arose under statute. Though planning law was a creature of statute, the proper interpretation of the statute was underpinned by general principles, properly referred to as derived from the common law. Although that observation related to the decision-making of local planning authorities, it was also apposite in principle in the context of the statutory regime for the registration of town and village greens: Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71; [2017] EGLR 22 and Dover District Council v CPRE Kent [2017] UKSC 79; [2018] EGLR 1 applied.
(3) In the context in which they were provided, the second respondent’s reasons for registering the land as a village green were clear and sufficient and not unlawful. In any event, the court would decline to quash the registration because there was no real possibility of its decision being different if it was compelled to state its reasons more fully. Accordingly, the cross-appeal failed.
In the first appeal: Douglas Edwards QC and Jeremy Pike (instructed by Sharpe Pritchard) appeared for the appellant; Tim Buley (instructed by the Government Legal Department) appeared for the respondent; Ned Westaway (instructed by Harrison Grant) appeared for the interested party. In the second appeal: Dr Ashley Bowes (instructed by Richard Buxton Environmental and Public Law) appeared for the appellant; Jonathan Clay and Matthew Lewin (instructed by Capstick Solicitors LLP) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
