In R (NHS Property Services Ltd) v Surrey County Council & Anor [2016] EWHC 1715 (Admin), the Court of Appeal overturned the High Court’s finding that designation of land at a hospital as a Town or Village Green (TVG) was lawful.
The Surrey County Council held an inquiry to consider a TVG application following an internal recommendation to reject it. The inspector considered the public use was not confined to those within a distinct locality or neighbourhood within a locality as required by the Commons Act 2006. Councillors disagreed and voted to register the land.
The Court of Appeal held that despite the absence of a statutory duty to give reasons for granting a TVG application, the duty arose because Article 6 ECHR (right to a fair trial) was engaged (applying English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605). Fairness may itself require that reasons be given “in a wide range of circumstances” having regard to the decision-maker, the kind of decision, and the statutory or other framework (Lloyd v McMahon [1987] AC 625). The impact on the landowner the fact that the authority was obliged to consider objections were enough to require reasons be given.
The authority’s decision to accept the neighbourhood area from which users had come was “essentially a matter of impression“. It did not have to address and distinguish every point in the non-statutory inspector’s report, merely form its own view, which it did.
The court also considered whether the doctrine of statutory incompatibility (R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7) could properly be excluded, so that the authority’s apparent failure to consider it could be said to make no difference to the outcome for the purposes of Section 31(2A) of Senior Courts Act 1981. Where parliament has conferred powers to hold and use land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes. Whether the land is currently used for a purpose that would be inhibited by TVG status is irrelevant. The specific powers by which the land is held must be understood and if, as a matter of statutory construction, the relevant statutory purpose is incompatible with registration then TVG registration cannot apply. As an issue raised by the appellant’s objections, the authority was “bound not just to consider it, but to give reasons for the conclusions it reached upon it“. Given that the inspector’s approach had been wrong, the authority’s failure to address the point was therefore sufficient to quash the registration.
Roy Pinnock is a partner in the planning and public law team at Dentons
