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Supreme Court ruling to impact on registration of town and village greens

  • United Kingdom
  • Real estate
  • Real estate planning - Planning briefings

13-12-2019

The Supreme Court has issued an important decision which considers whether land can be registered as a town or village green where that land has been acquired by a statutory undertaker and is held for purposes that are inconsistent with the use of that land as a town or village green. In R(Lancashire County Council) v SoS for the Environment, Food and Rural Affairs and R(NHS Property Services Ltd) v Surrey County Council1, the Court specifically considered the issue of ‘statutory incompatibility’ excluding the operation of section 15 of the Commons Act 2006 in relation to land held under legislation relating to education and health services.

The Lancashire CC case concerned land adjoining a primary school, which the County Council maintained was acquired for and remains appropriated to educational purposes, in exercise of its powers as education authority. The land in issue comprised areas being used for the construction of an extension to the school, a playing field and plots of land overgrown and difficult to access.

The NHS Property Services Ltd case related to an area of land adjacent to Leatherhead Hospital in Surrey held pursuant to the provisions of the National Health Services Act 2006. The land was not in use for hospital purposes and it was accepted that there had been sufficient qualifying use of the land for more than 20 years.

The Justices of the Supreme Court did not reach a unanimous decision. The majority decision held that the test is: whether the land has been acquired for statutory purposes and is for the time being held for those purposes and there is an incompatibility between the relevant statutory powers under which the land is held and the use of that land as a town or village green. Where there is a statutory incompatibility, section 15 of the Commons Act 2006 does not apply. It is immaterial whether the land is acquired by a statutory undertaker by voluntary agreement or by the exercise of compulsory purchase powers.

The principle of ‘statutory incompatibility’ preventing registration of land as town or village green is not limited to statutory undertakers and the principle applies to land held by local authorities and to public authorities with powers defined by statute, such as NHS Property Services.  

It is not necessary for the statutory undertaker or public authority to show that the land is currently being used for the purposes for which it is held. Determining whether there is statutory incompatibility does not involve an evaluation of the facts relating to the use to which the land has been put or how the land-holding authority might be using or proposing to use the land.

On the specific facts on the land at issue in Lancashire and Surrey, the majority decision concluded that there was an incompatibility between the statutory purposes for which the land involved is being held and use as a town or village green. As a matter of statutory construction, the provisions of the 2006 Act are not applicable to this land.

This is a significant decision of considerable interest to public and local authorities and developers alike. For local and public authorities who hold land under statutory powers, this will reduce risks relating to applications for registration of land which is proposed for development. Similarly, developers acquiring land from local and public authorities will benefit from the clarity provided by this ruling. 

[2019] UKSC 58