Judges at the Supreme Court are today being asked to decide when land owned by public authorities is immune to the laws relating to town and village greens.
Land that has been used by communities for recreation for more than 20 years can be designated as a “town or village green”, limiting building that can take place on it.
The five-judge panel is weighing two cases joined into one. One relates to land beside a Lancashire primary school that is owned by the local council, which is also the local educational authority. The other relates to woodland adjoining Leatherhead Hospital. That land is part of the same freehold title of the hospital.
In both cases, local communities sought to have the land designated as a green, and in both cases the public body owners argued the land shouldn’t be given the designation because of “statutory incompatibility”.
Specifically, Lancashire County Council argued that turning the land into a green would be contrary to its statutory duty to provide education, while NHS Property Services said a green would interfere with the statutory duty to provide healthcare.
The High Court took two different view of the situation. But in both cases the Court of Appeal ruled the land could be turned into a greens.
Opening the hearing today, Douglas Evans QC, lawyer for Lancashire County Council, said that as the local education authority, the council has “a duty to provide schools and sufficient play space, and clearly that requires the use of land.”
The land in question had been acquired for the “discharge of those duties.” If it is registered as a green, it could not be used for school building or development, it could not be enclosed, and public access would be allowed. Therefore, because of safeguarding policies, pupils would not be allowed on it.
“As a matter of fact… in practice, the land could not be used by the primary school,” he said.
In the case of the hospital land, Ashley Bowes, acting for the residents applying for the land to be turned into a green, said the case has wide implications.
“If the appellant were correct, that in the case of land held pursuant to statutory powers, permission may be inferred via no positive act on the part of the landowner whatsoever, there would, in effect, amount to a complete exemption for landowners in the category of the appellant,” he said in written arguments.
“In every case in which peaceful use of their land had subsisted for 20 years for lawful sports and pastimes, the landowner would be able to contend that the use was permissive, with no evidence whatsoever to support that contention.”
The judges are Lord Wilson, Lord Carnwath, Lady Black, Lady Arden, Lord Sales. The case is scheduled to last two days with judgment reserved for a later date.
R (on the application of Lancashire County Council) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent)
and
R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another (Respondents)
