The Public Rights Over Land Conference

Tuesday 03 March 2020


George Laurence Q.C.
Ross Crail
Rajinder Sahonte
Simon Adamyk
Paul Wilmshurst


The Law Society
113 Chancery Lane


10:00: Registration
10:15: Seminar
16:30: Close



Lancashire in the Supreme Court - Simon Adamyk

Statutory incompatibility - important Supreme Court developments

  • The NHS and Lancashire County Council recently secured a historic victory in the Supreme Court in a decision which potentially affects all public authority landowners and those with claims to public rights over their land.

  • In the combined appeals in R (Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs and R (NHS Property Services Ltd) v Surrey County Council [2019] UKSC 58, the Supreme Court held that land owned by two public authorities could not be registered as a town or village green (TVG) under the Commons Act 2006 because the doctrine of statutory incompatibility prevented this.
  • Overturning the Court of Appeal's decision in both cases, the Supreme Court held that the land was held by those public authorities for defined statutory purposes and that registration of the land as a TVG would be in conflict with those purposes.
  • The Supreme Court provided welcome clarification of the statutory incompatibility principle as previously set out in R (Newhaven Harbour Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7.
  • What exactly is this principle, what are the necessary ingredients for it to operate, who does it affect, and what impact might it have on other areas?


Roxlena unpacked - Ross Crail
Discussion of the implications of the Court of Appeal’s decision in R(Roxlena Ltd) v Cumbria County Council, in particular.

  • the meaning of “discovery of evidence” in section 53(3) of the Wildlife and Countryside Act 1981
  • the test for making a definitive map modification order on the basis that a right of way is reasonably alleged to subsist
  • the extent of the surveying authority’s duty to investigate the matters stated in an application for a modification order

Commons update Paul Wilmshurst 

  • How to define the curtilage of a building in the context of applications to deregister common land.
  • The High Court litigation involving Leigh Common and Blackbushe Airport  (judgment pending) will be discussed.
  • High Court’s decision in Stanning v Baldwin [2019] EWHC 1350 as it pertains to the intensification of easements over land subject to public rights (common land and public rights of way). 

The prescriptive principle - George Laurence Q.C. & Rajinder Sahonte 

  • As of right- the ongoing debate
  • What is really involved in the idea of implied permission?
  • Does the public have to lead actual evidence in a section 31 case of use or can use be inferred?


(a) Use as of right and (b) Diversion orders. – a case study led by George Laurence Q,C


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