Court of Appeal to re-consider statutory incompatibility doctrine in village green cases

01 Jan 2018

Planning and Environment

Ashley Bowes has secured permission to appeal for Mr Tim Jones, a local resident, against the judgment of Mr Justice Gilbart in NHS Property Services Ltd v Surrey County Council [2016] EWHC 1715 (Admin.)

The landowner, NHS Property Services Ltd, sought judicial review in the High Court against the decision of Surrey County Council, acting as commons registration authority, to register land adjacent to Leatherhead Hospital, known locally as Leach Grove Woods, as a town or village green under s.15(3) Commons Act 2006.

The claim was brought upon a number of grounds, however Gilbart J. quashed the decision on one ground, namely that the Council was wrong to accept the advice of its Inspector that registration was not incompatible with the NHS’s duties. Accordingly, Gilbart J found that the doctrine set out by the Supreme Court in R(Newhaven Port & Properties Ltd) v East Sussex County Council [2015] 2 WLR 1547 was duly engaged. However, the Judge took the unusual step of granting permission to appeal on the basis an appeal stood “a real prospect of success”.

The Court of Appeal will now consider whether land held by the National Health Service is exempt from being registered as a town or village green. It will also present the opportunity for the Court to deal with the broader issue as to when the Commons Act 2006 is overridden by another general statute. The issue has recently also arisen in relation to the powers of a local education authority in R(Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 1238 (Admin.) and did not fall to be directly considered by their Lordships in Newhaven.

Ashley Bowes (instructed by Kristina Kenworthy of Richard Buxton Environmental & Public Law) acts for the Appellant and acted for the Applicant before the Council.

Jonathan Clay and Matthew Lewin (instructed by Capsticks LLP) appeared for the NHS in the High Court, and Jonathan Clay acted for the NHS before the Council.