Town and village green law: Supreme Court decision on ‘statutory incompatibility’

Overview of a lifeline from the Supreme Court to help save land held for statutory purposes being registered as a town or village green

17 February 2020

Registration of land as a town or village green (TVG) is detrimental to landowners and developers. The land’s commercial value plummets as use of the land is severely restricted. A fertile ground for dispute. In its latest ruling on the subject, the Supreme Court has handed landowners (particularly public bodies) a lifeline for defending their land against TVG registration. However, the decision was not unanimous – the justices ruled three to two in favour of allowing the appeals. Given there were two dissenting judgments, there is scope for further clarification of this nuanced area of law and with so much at stake, we expect to see more hard fought cases on this topic reach the courts in coming months. In the meantime, those holding land for a statutory purpose (e.g. statutory undertakers and public bodies) will welcome the decision for it will assist in resisting any TVG application.

Background

This Supreme Court decision was on two conjoined cases: R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another and R (on the application of NHS Property Services Ltd) v Surrey County Council and another [2019] UKSC 58. Burges Salmon’s legal update on the Court of Appeal judgment can be found here.

The Lancashire case concerned an application to register land next to a school as a TVG. The land in question was held for educational purposes by the council. The school was not using all the land at the time of the TVG application though some of the land was used as a playing field and another part was being used to facilitate an extension to the school buildings.

The NHS case was in relation to an application made to register an area of woodland next to a hospital as a village green. The land in question was held for healthcare purposes by NHS Property Services Ltd. The NHS was not using the woodland at the time the TVG application was made.

Supreme Court decision

The Supreme Court allowed the appeals by a majority of three to two. The specific public interest contained in the statutory purposes for which the land in both cases was held outweighed the public interest in registering the land as TVG.

The crucial point in the decision was the interpretation of 'statutory incompatibility' from the Supreme Court decision in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015]. In Newhaven the court found the beach, which was within the harbour area, could not be registered as TVG as use as a TVG was incompatible with the statutory purposes relating to maintenance and operation of the harbour for which the beach was held. The court in the recent conjoined case interpreted the majority judgment in Newhaven as follows: Land acquired and held by a public authority for statutory purposes could not be registered as a TVG if those purposes were actually, or would in theory be, incompatible with being a TVG.

In both the Lancashire and NHS cases, the Supreme Court held that the specific statutory purposes for which the land was held were incompatible with its use as a TVG.

The court specifically identified that the test is not whether the land has been allocated by statute for statutory purposes, but that the land has been acquired (voluntarily or compulsorily) for statutory purposes.

Why is this decision significant?

Over time, the courts have swung the pendulum between interpreting the law in favour of TVG supporters and in favour of landowners. This time it has swung, tentatively perhaps, in favour of landowners. Landowners who hold land for statutory purposes should find it easier to resist TVG applications while members of the public may struggle to register land as TVGs even if the criteria of a TVG are satisfied. This may be an opportunity public bodies should seize, ensuring their land assets are in order and the statutory purposes for holding those assets clear.

How can Burges Salmon help?

We have extensive experience of town or village green related matters and regularly provide fixed price reviews of town or village green risk for specific sites, including advice on the steps landowners can take to reduce the risk of registration applications. We have successfully defeated many town or village green applications at public inquiry, and have a strong understanding of the arguments and tactics required to produce the results our clients are looking for.

If you have any queries about town or village greens, please do not hesitate to contact Julian Boswall or Laura Fuller.

Key contact

Julian Boswall

Julian Boswall Partner

  • Energy, Power and Utilities
  • Infrastructure
  • Planning and Compulsory Purchase

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