The conjoined appeals of Lancashire County Council, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs and another and NHS Property Services Ltd, R v Surrey County Council and another  UKSC 58 (the “Lancashire” and “Surrey” cases respectively) split the Supreme Court by 3 to 2 in December 2019 when it ruled that the two areas of land owned by the public authorities could not be registered as a Town and Village Green (“TVG”).
So how did the Supreme Court reach its decision and what does this mean for public bodies?
The “statutory incompatibility” test
Under Section 15 of the Commons Act 2006, anyone can apply to register land as a TVG where a significant number of the inhabitants of any locality have indulged in lawful sports and pastimes on the land for a period of at least 20 years “as a right”, meaning without force, secrecy or permission.
But what happens when an application to register a TVG relates to land that is held for a statutory purpose? This was first considered by the Supreme Court in 2015 in R. (on the application of Newhaven Port and Properties Ltd) v East Sussex CC  UKSC 7 (“Newhaven”). In Newhaven, the Supreme Court held that a beach within a working harbour which was acquired by and operated by a statutory undertaker could not be registered as a TVG because there was clear incompatibility between the port’s statutory functions as a working harbour and the registration of the beach as a TVG. Newhaven defined the principle of “statutory incompatibility”; land cannot be registered as a TVG where it is acquired and held for general statutory powers that are incompatible with a TVG.
The Lancashire and Surrey cases
In the recent cases of Lancashire and Surrey, both areas of land for which applications for registration as a TVG were made were owned by public authorities. In the Lancashire case the land was beside a Lancashire primary school owned by Lancashire County Council and in the Surrey case the land was woodland adjoining Leatherhead Hospital owned by the NHS. The distinctions with Newhaven were that neither area of land was:
- held by statutory undertakers, it was held by public authorities; and
- currently in use by the public authorities for the purpose it was acquired; the land in Lancashire was not currently in use by the school and the woodland in Surrey was not being used for hospital related purposes.
The Court of Appeal upheld the decision of the High Court that both areas of land could be registered as TVGs. This was on the basis that there was no specific statutory purpose which was fundamentally inconsistent with TVG registration and that the statutory duties of the landowners could still be carried out even if the land was registered as a TVG.
Unsatisfied, both landowners appealed to the Supreme Court, maintaining that turning the land into a TVG would be contrary to and would interfere with their statutory duties to provide education and healthcare services respectively.
In a contentious decision that split the Supreme Court by 3 to 2, the Supreme Court allowed the appeal and held that neither the school land nor the hospital land should be registered as a TVG. The majority judgement considered the Newhaven ruling and held that it was implicit in Newhaven that land acquired and held in exercise of general statutory powers that were incompatible with use of that land as a TVG could not be registered as a TVG. It considered that the test in Newhaven was one of statutory construction only, not also an assessment of the facts about the current use of the land. Here there was an incompatibility between the general statutory purposes for which the areas of land were held and their use as a TVG. Further, it held that there was no reason to limit the test to statutory undertakers; it also applied to public authorities with statutory powers.
What does this mean for public bodies?
The Supreme Court decision is surely good news for public bodies. It limits the scope of the Commons Act 2006 and implies that all publically owned land held for a statutory purpose is excluded from registration as a TVG, whether or not the public body is actually using or proposing to use the land under its statutory powers. However, the fact that the Supreme Court was so divided suggests that the principle of “statutory incompatibility” may need some fine-tuning and perfecting, particularly if the decision triggers a wave of further cases where public authorities seek to challenge not only new applications for TVG registration but also any past registrations that it considers should be overturned in the wake of Lancashire and Surrey.
Public bodies would therefore be prudent to control who has access to their land and to ensure that the public is not able to indulge in lawful sports and pastimes “as a right”. The simplest way to do this would be to grant express permission to use the land, which would invalidate the “as a right” principles of the Commons Act 2006 and ensure that the criteria for TVG registration is not met.