Supreme Court: NHS “Public purposes” no longer stymied by village green registration

11 Dec 2019

Planning and Environment, Public Law and Judicial Review


The Supreme Court has ruled that use of land held by public bodies for “good public purposes” cannot be “stymied” by registration as a village green. They have ordered that the land should not be registered.

The long-awaited co-joined appeals of R(Lancashire CC) v Secretary of State for Environment Food and Rural and Affairs and R(NHS Property Services Ltd) v Surrey County Council and Jones [2019] UKSC 59 were handed down today by the Supreme Court.

The question is now being raised whether other potentially valuable land owned by public authorities that has been registered as a village green can be removed from the register and reinstated and held for its original public purposes.

Case background

The NHS case concerned an area of undeveloped land owned by the NHS, adjoining Leatherhead Hospital in Surrey.

After a public inquiry lasting five days, the land had been registered as a village green by Surrey County Council, rejecting the NHS’s arguments that the land was held for future statutory clinical and healthcare purposes inconsistent with use of the land as a village green. The NHS successfully challenged the registration in the High Court but this was overturned by the Court of Appeal on an application by a local resident, Mr Jones, and the NHS appealed to the Supreme Court.

The judgment

By a 3:2 majority (per Lords Carnwath, Sales and Lady Black) the Supreme Court held that where there is:

incompatibility between the statutory purposes for which the land is held and use of the land as a town or village green … the provisions of the [Commons Act] 2006 are, as a matter of the construction of that Act, not applicable in relation to it” (para.55)

This judgment substantially extends the principle of statutory incompatibility, initially identified by the Supreme Court in R(Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7, to any situation in which the use by local inhabitants would conflict with the statutory purpose for which the land is held.

The Supreme Court (at para 56) held that the test for statutory incompatibility is expressed in general terms: the test 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.

The majority did not find this surprising, saying (at para.61) that “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“, and that “there is no indication in that Act, or its predecessor (the Commons Registration Act 1965) that it was intended to have such an effect“.

There was statutory incompatibility in each of the co-appeals: the village green rights would conflict with the statutory healthcare purposes for which the land was held by the NHS or the statutory education purposes in the Lancashire case. The land could therefore not be registered as a village green.

Crucially, the majority held that it did not make any difference how the land actually happens to be used at any particular point in time. What matters is the general statutory purpose for which the land is held.

Both Lady Arden and Lord Wilson, however, did not agree and delivered powerful dissenting judgments.

The majority did not, however, disturb the observation of Lord Neuberger PSC in Newhaven at para.101. Accordingly, it remains the case that the doctrine of statutory incompatibility will not apply where “a public body might have statutory purposes to which it could in future appropriate the land (but has not yet done so)” (para.70).

The Supreme Court did agree that the NHS’ additional argument should be dismissed. This was that an implied permission could be inferred from its inaction over the qualifying period.

The NHS contended that it had an implied power to permit recreation and that it should be presumed it took a lawful decision to permit recreation in this instance because of the presumption of regularity, which applies to public authority decision making.

The majority (without dissent) affirmed the surviving parts of R(Beresford) v City of Sunderland [2003] UKHL 60, to re-state that: “passive acquiescence, even by a statutory authority with power to permit recreational use, is not enough” (para.40).

The NHS legal team: Jonathan Clay of Cornerstone Barristers with George Laurence QC (leader), and Simon Adamyk of 1, New Square for NHS Property Services Ltd (instructed by Womble Bond Dickenson LLP).

Dr Ashley Bowes of Cornerstone Barristers appeared for Mr Jones (instructed by Richard Buxton Solicitors).