Supreme Court rules that NHS “public purposes” are no longer stymied by village green registration


11th December 2019

Supreme Court rules that NHS “public purposes” are no longer stymied by village green registration

 

Introduction

On 11 December 2019, the Supreme Court ruled that use of land held for “good public purposes” cannot be “stymied” by registration as a town or village green. The Court ruled that the relevant land could not be registered.

 

The Supreme Court so held in the long-awaited conjoined appeals of R (Lancashire CC) v Secretary of State for Environment, Food and Rural Affairs and R (NHS Property Services Ltd) v Surrey County Council and Jones [2019] UKSC 58.

 

The issues which are now being raised include questions as to the other public bodies and statutory purposes to which this broad principle will apply, and whether other potentially valuable land owned by public authorities that has previously been registered as a town or village green can now be removed from the register and reinstated and held for its original public purposes.

 

Background

The NHS case concerned an area of undeveloped land owned by the NHS, adjoining Leatherhead Hospital in Surrey. After a public inquiry lasting 8 days, the land had been registered as a town or village green by Surrey County Council, rejecting the NHS’s arguments that registration was not permitted because the land was held for future statutory clinical and healthcare purposes which were 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 Lord Carnwath, Lord 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 that 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 purposes 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 appeals before the Court: the village green rights would conflict with the statutory healthcare purposes for which the land was held by the NHS (in the NHS case) 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. On that key issue the minority strongly disagreed, with both Lady Arden and Lord Wilson giving reasoned 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).

 

George Laurence QC (New Square Chambers), Jonathan Clay (Cornerstone Barristers) and Simon Adamyk (New Square Chambers) appeared for the successful Appellant, NHS Property Services Ltd (instructed by Womble Bond Dickinson LLP).

 

Dr Ashley Bowes (Cornerstone Barristers) appeared for the Second Respondent, Mr Jones (instructed by Richard Buxton Solicitors).

Associated Members

Simon Adamyk

George Laurence QC


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