This Week’s Big News: Supreme Court, Village Greens & The Statutory Incompatibility Test

You will remember the Supreme Court’s unanimous ruling that our Prime Minister had acted unlawfully in advising the Queen in August 2019 that Parliament should be prorogued?

Last week, in R (Lancashire County Council) v Secretary of State

R (NHS Property Services Ltd) v Surrey County Council and another (Supreme Court, 11.12.19), five Supreme Court justices were faced with a rather more difficult issue, where a unanimous ruling could not be achieved.

The principal issue was “the circumstances in which the concept of “statutory incompatibility” will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes.”

It’s an important question, given the frequency with situations arise where land owned by public bodies may end up being used by local people for many years “as of right”. It is also somewhat of a legal conundrum due to the apparent inconsistency between the rights given by the Commons Act 2006 and the statutory regimes under which public bodies hold land for public purposes.

In R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] AC 1547 (“Newhaven”) [the Supreme Court] held that the duty under section 15 of the Commons Act 2006 did not extend to an area held under the specific statutes relating to the Newhaven Harbour. We are asked to decide whether the same principle applies to land held by statutory authorities under more general statutes, relating respectively (in these two cases) to education and health services.”

The facts are summarised in my 5 May 2018 blog post We Are The Village Green Preservation Society, which covered the Court of Appeal’s decision to uphold registration. The Court of Appeal had distinguished the Newhaven case, holding as follows:

⁃ in relation to the land held by Lancashire County Council for educational purposes, that by “contrast with Newhaven Port & Properties, there were no ‘specific’ statutory purposes or provisions attaching to this particular land. Parliament had not conferred on the county council, as local education authority, powers to use this particular land for specific statutory purposes with which its registration as a town or village green would be incompatible.”

⁃ in relation to the land owned by NHS Property Services in Surrey, “the circumstances did not correspond to those of Newhaven Port & Properties. The land was not being used for any ‘defined statutory purposes’ with which registration would be incompatible. No statutory purpose relating specifically to this particular land would be frustrated. The ownership of the land by NHS Property Services, and the existence of statutory powers that could be used for the purposes of developing the land in the future, was not enough to create a ‘statutory incompatibility’. The clinical commissioning group would still be able to carry out its statutory functions in the provision of hospital and other accommodation and the various services and facilities within the scope of its statutory responsibilities if the public had the right to use the land at Leach Grove Wood for recreational purposes, even if the land itself could not then be put to use for the purposes of any of the relevant statutory functions. None of those general statutory functions were required to be performed on this land. And again, it is possible to go somewhat further than that. Although the registration of the land as a village green would preclude its being developed by the construction of a hospital or an extension to the existing hospital, or as a clinic or administrative building, or as a car park, and even though the relevant legislation did not include a power or duty to provide facilities for recreation, there would be nothing inconsistent – either in principle or in practice – between the land being registered as a green and its being kept open and undeveloped and maintained as part of the Leatherhead Hospital site, whether or not with access to it by staff, patients or visitors. This would not prevent or interfere with the performance of any of the relevant statutory functions. But in any event, as in the Lancaster case, the two statutory regimes were not inherently in conflict with each other. There was no ‘statutory incompatibility’.”

The Supreme Court overturned the Court of Appeal’s ruling by a majority. In the majority judgment of Lord Carnwath and Lord Sales (with which Lady Black also agreed) it was held that the “test as stated is not whether the land has been allocated by statute itself for particular statutory purposes, but whether it has been acquired for such purposes (compulsorily or by agreement) and is for the time-being so held.”

Acquisition of land by a statutory undertaker by voluntary agreement will typically be by the exercise of general powers conferred by statute on such an undertaker, where the land is thereafter held pursuant to such powers rather than under specific statutory provisions framed by reference to the land itself (as happened to be a feature of the provisions which were applicable in Newhaven itself). That is also true of land acquired by exercise of powers of compulsory purchase. In relation to the latter type of case, the majority said in terms that “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” (para 93). On our reading of the majority judgment, it is clear that in relation to both types of case Lord Neuberger and Lord Hodge took the view that an incompatibility between general statutory powers under which land is held by a statutory undertaker (or, we would add, a public authority with powers defined by statute) and the use of such land as a town or village green excludes the operation of the 2006 Act.

We do not find the construction of the 2006 Act as identified by the wider reasoning of the majority in Newhaven surprising. It would be a strong thing to find that Parliament intended to allow use of land held by a public authority for good public purposes defined in statute to be stymied by the operation of a subsequent general statute such as the 2006 Act. There is no indication in that Act, or its predecessor, that it was intended to have such an effect.”

“In construing the 2006 Act it is also significant that it contains no provision pursuant to which a public authority can buy out rights of user of a town or village green arising under that Act in relation to land which it itself owns…Again, it would be surprising if Parliament had intended to create the possibility that the 2006 Act should in this way be capable of frustrating important public interests expressed in the statutory powers under which land is held by a public authority, when nothing was said about that in the 2006 Act.”

The three justices stressed that what matters is the statutory powers for which the land is held, not how the public body may be using, or proposing to use, the land.

Lady Arden dissented from the majority judgment on that last issue (whilst agreeing that the appeals be allowed); in her view it “must be shown that the land is in fact also being used pursuant to those powers, or that it is reasonably foreseeable that it will be used pursuant to those powers, in a manner inconsistent with the public’s rights on registration as a TVG.”

Lord Wilson dissented from the majority judgment more widely and would have dismissed the appeals:

It is agreed that, in their capacity as education authorities, local authorities, such as the appellant in the Lancashire case, can hold land only for specified statutory purposes referable to education; that health authorities, such as the appellant in the Surrey case, can hold land only for specified statutory purposes referable to health; and that, for example, in their capacity as housing authorities, local authorities can hold land only for specified statutory purposes referable to housing.

If public authorities which hold land for specified statutory purposes are to be immune from any registration of it as a green which would be theoretically incompatible with their purposes, the reach of section 15 of the Commons Act 2006 Act is substantially reduced. One would expect that, had such been its intention, Parliament would have so provided within the section. In the absence of any such provision, whence does justification for it come?

He disagreed with Lord Carnwath and Lord Sales that “incompatibility with statutory purposes should be assessed as a theoretical exercise rather than by means of a practical inquiry into interference with the authority’s existing or proposed future use of the land.

Adopting what I believe to be the correct, practical, approach to the assessment of incompatibility in relation to the present appeals, I agree with the Court of Appeal that neither the education authority nor the health authority has established that public use of its land as a registered green would be likely to be incompatible with its use of it pursuant to its statutory powers. In the Lancashire case the Inspector conducted the requisite practical assessment, which led her to reject the alleged incompatibility; and, like the Court of Appeal, Ouseley J in the Administrative Court found no fault with her reasoning. I discern no ground upon which this court might have concluded otherwise. In the Surrey case the Inspector, while recommending refusal of the application for a different reason later shown to be invalid, also rejected the alleged incompatibility on apparently practical grounds; and the error of law which Gilbart J in the Administrative Court perceived him to have made in assessing it practically rather than as a matter of statutory construction was in my view correctly held by the Court of Appeal to have been no error at all.

It was with complete passivity that, for no less than 20 years, these two public authorities contemplated the recreational use of their land on the part of the public. Their simple erection at some stage during that period of signs permitting (or for that matter prohibiting) public use would have prevented such use of the land being as of right: Winterburn v Bennett [2016] EWCA Civ 482, [2017] 1 WLR 646. In such circumstances it is hardly surprising that they both failed to establish its practical incompatibility with their own proposed use of it.”

Concluding remarks

The judgment gives public bodies a much stronger basis to resist application for registration of land which they hold in pursuance of statutory functions. Will we now indeed see applications to de-register village greens? Part of the reason for this legislative and judicial mess is because, as identified early on in the majority judgment, “there is no indication that the concept of a modern green, as it has been developed by the courts, was part of the original thinking under the Commons Registration Act 1965” – it was assumed that the 1965 Act was to be read as requiring 20 years’ use as a village green before the passing of that Act, rather than a period of 20 years back from the date of the application, but this was not how the test came to be interpreted by the courts and the opportunity was not taken to clarify the position when the Bill that led to the Commons Act 2006 passed through Parliament.

Applications for village green registration are a powerful weapon, often used with the purpose of opposing development, and a successful application will inevitably have that effect. The scope for such applications was much reduced by the introduction of a series of disqualifying “trigger events” in the Growth and Infrastructure Act 2013 and this Supreme Court ruling will serve to reduce their scope further.

Simon Ricketts, 14 December 2019

Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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