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Supreme Court to decide when publically held land is registerable as a village green

The Supreme Court has granted permission to appeal against the decision of the Court of Appeal in the co-joined appeals of Timothy Jones v NHS Property Services Ltd & R(Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ. 721.

The central question in both appeals is: when is land held pursuant to statutory provisions exempt from registration as a town or village green under the provisions of s.15 Commons Act 2006?

The High Court had taken two differing approaches to this question, which gave rise to the co-joined appeals. Ouseley J took a narrow view of the principle in Lancashire CC v SSEFRA & Bebbington [2016] EWHC 1238 (Admin.), whereas Gilbart J took a wider view in R(NHS Property Services Ltd) v Surrey County Council & Jones [2016] EWHC 1517 (Admin.).

The Court of Appeal decided (per Lindblom LJ at [40]) that the principle of statutory incompatibility arose only in the following narrow circumstances:

(i) There must be "specific" statutory purposes or provisions attaching to [the] particular land [subject to the application]".

(ii) Parliament must have conferred on the landowner powers to use the "particular land for specific statutory purposes with which its registration as a town or village green would be incompatible".

(iii) So as to "clearly impede", or "prevent" or "restrict" the exercise of any statutory power, or the discharge of any statutory duty, relating specifically to that particular land".

As such, in cases where:

(i) "The statutory powers and duties relied upon were general in their character and content" (at [40]).

(ii) "There was no statutory obligation to maintain or use the land in question in a particular way, or to carry out any particular activities upon it" (at [40]).

(iii) Performance of those general duties "might be or become more difficult or less convenient" but "not that it would be prevented from carrying out any particular statutory function relating specifically to the land whose registration as a town or village green had been applied for" (at [40]).

(iv) Performance of the "relevant statutory purposes were capable of fulfilment through the county [landowner's] ownership, development and management of its property assets ... without recourse to the land in question" (at [40]) the Court of Appeal held that the principle of statutory incompatibility will not arise.

The Supreme Court now has the opportunity to reconsider its previous judgment of R(Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7, which found that a stretch of tidal foreshore at Newhaven Harbour was not liable for registration as a new green because of a statutory incompatibility between the public rights of recreation which arose on registration and the duties upon the landowner to maintain a harbour at Newhaven under the provisions of the Newhaven Act 1847.

Interestingly, Lord Neuberger PSC who delivered the leading judgment in Newhaven has now retired and the appeal may give Lord Carnwath JSC, who delivered an additional reasoned judgment in Newhaven, the opportunity to nuance the principle.

The case is definitely one to watch as it has the potential to radically effect the status of publically accessible land held by public authorities pursuant to statutory powers. 

A copy of the Supreme Court's order can be found here.

Ashley Bowes (instructed by Kristina Kenworthy at Richard Buxton Environmental and Public Law) appears for Mr Jones who was successful in the Court of Appeal.

Jonathan Clay (instructed by Womble Bond Dickinson) appears for NHS Property Services Ltd (together with George Laurence QC and Simon Adamyk).