Two recent Supreme Court decisions have cast new light on the circumstances in which an application for registration of a new town and village green might be defeated by the defence of statutory incompatibility of land use.
Section 15 of the Commons Act 2006 provides that an application can be made to register land as a town and village green (TVG) where:
“a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.
The recent Supreme Court decisions turn on the interpretation of the words as of right. Can this limb of the test be met where use of land as a TVG is incompatible with the statutory purpose for which it is held by a public body? Note here the key point is how is the land held, not how is the land used.
The case of R (on the application of Newhaven Port and Properties Ltd) v East Sussex CC  UKSC7 considered whether land held by a statutory undertaker for a statutory purpose could be registered as a TVG. The case found that a beach within a harbour could not be registered as a TVG, due to clear incompatibility between the operation of the Port’s statutory functions and the registration of the land as a TVG.
Section 15 therefore did not apply to land held by a statutory undertaker for statutory purposes. The Supreme Court cases considered a similar point, albeit that the land in question was held by a public authority rather than a statutory authority.
In R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and R (on the application of NHS Property Services Ltd) v Surrey County Council, two appeals were heard together. Both related to land that was held by a public authority for a statutory purpose:
The first appeal concerned land adjacent to a primary school which was owned by Lancashire County Council (LCC). This land had previously been appropriated for educational purposes by LCC and an application was made to register the land as a TVG. An inspector appointed by the Secretary of State determined that the majority of the land in question should be registered as a TVG as there was no good statutory incompatibility defence applicable. This view was upheld in the High Court following an application for judicial review by LCC.
The second appeal related to land in Leatherhead owned by NHS Property Services. An inspector recommended refusal of registration. However, the commons registration authority, Surrey County Council declined to follow the Inspector’s recommendation and registered the land as a TVG. There followed a successful judicial review application from the NHS which resulted in the registration being quashed on the basis that the County Council had failed to consider statutory incompatibility.
The appeals were heard together and the Court of Appeal upheld the decision to register the land as a TVG in both cases. However the Supreme Court allowed both appeals, determining that land could not be registered as a TVG where it was held by a public body for a statutory function that is incompatible with its use as a TVG.
Critically, the Supreme Court found that there does not need to be any factual assessment of how a public body is actually using or might be proposing to use the land. It is enough that the land is held for a statutory function that can be said to be incompatible with its use as a TVG.
This ought to mean that public bodies holding land for general statutory purposes will find it easier to oppose applications to register land as TVGs. Conversely, members of the public are likely to find it harder to register such land even though it may have been used for recreational pastimes over many years.
It is interesting to note that the issue divided the Supreme Court, and the decision was only reached by a 3:2 majority. One of the dissenting judgements suggested that the Act’s reach is substantially reduced if land held by public authorities for specified statutory purposes is to be immune from registration as a green.
On that basis, it would seem that the door is left open to potential cases which seek to distinguish between land which is clearly held for statutory purposes, but for which there are specific duties conferred on the public authority to retain the land for that purpose; and those where land is held merely as an asset of that authority.
As well as continuing the trend of decisions/legislation that makes it progressively more difficult to register new TVGs, these cases leave behind some uncertainties of their own. For example, what implications might follow from the timing of any appropriation of land? To establish a defence of statutory incompatibility does this need to be a meaningful appropriation with evidence of the new use before an application can be defeated?
Ref: R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and (on the application of NHS Property Services Ltd) v Surrey County Council  UKSC 58.