The Supreme Court held that land held by a public authority for statutory purposes cannot be registered as a town or village green where registration would be incompatible with those purposes, applying the principle from Newhaven more widely than the Court of Appeal. In joined appeals concerning school land in Lancashire and hospital land in Surrey, the majority allowed the landowners’ appeals. Lady Arden partly dissented and Lord Wilson dissented.
The appeals concerned whether “statutory incompatibility” prevents registration of land as a town or village green under section 15 of the Commons Act 2006 when a public authority holds the land for statutory purposes. In R (Newhaven Port & Properties Ltd) v East Sussex County Council the Supreme Court had held that section 15 did not apply to land held under specific harbour statutes whose purposes were inconsistent with registration. The question was whether the same principle applies to land held under more general powers relating to education and health.
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The Lancashire land
Moorside Fields, about 13 hectares beside Moorside Primary School in Lancaster, is owned by Lancashire County Council, both the local education authority and the registration authority. On 9 February 2010 Janine Bebbington applied to register it, relying on 20 years’ use. An inspector appointed by the Secretary of State decided that areas A to D should be registered and area E should not, for want of sufficient evidence of use. The council said the land had been acquired and held for educational purposes under the Education Acts, including duties to secure sufficient schools, standards for school premises, and safeguarding. The inspector was not satisfied that it was held for those purposes and, even assuming it was, found no clear incompatibility with registration. Ouseley J upheld her decision.
The Supreme Court majority held that the inspector’s conclusion on the purpose for which the land was held was irrational. Conveyances, endorsements referring to section 87(3) of the Education Act 1944, and later records supported the inference, on the balance of probabilities, that areas A to D had been acquired and continued to be held for statutory educational purposes. There was no evidence of appropriation to any other purpose. Registration would be incompatible with those purposes, including safe use of a school playing field and any future educational use such as new buildings. It was enough that the land was held for those purposes; current plans were not required.
The Surrey land
Leach Grove Wood, about 2.9 hectares adjoining Leatherhead Hospital, was held for health purposes and later owned by NHS Property Services Ltd, a company formed by the Secretary of State. Philippa Cargill applied on 22 March 2013, relying on use until permissive signs were erected in January 2013. An inspector rejected statutory incompatibility, contrasting the case with the specific duties in Newhaven, but recommended refusal because the use was not of a qualifying locality or neighbourhood. The county council nevertheless registered the land. Gilbart J quashed the registration, holding that there was a conflict between the health statutes and registration: feasible health-related uses, such as buildings or hard standing, would conflict with recreational rights, and current non-use was irrelevant. The Court of Appeal restored both registrations, holding that there were no specific statutory purposes attaching to the particular land with which registration was inherently inconsistent, and that the authorities could still perform their general functions elsewhere.
The majority’s reading of Newhaven
Lord Carnwath and Lord Sales, with whom Lady Black agreed, held that the appeals should be allowed. On a true reading of the majority judgment in Newhaven, section 15 does not apply where land has been acquired, compulsorily or by agreement, and is held for statutory purposes inconsistent with registration. The principle is not confined to statutory undertakers or to powers directed at a particular site. Lord Neuberger and Lord Hodge had posed the question in general terms and had distinguished earlier cases, including New Windsor, the Trap Grounds case and Lewis, on the ground that the land there was not shown to be held for incompatible statutory purposes. A general later statute should not be read as stymying public purposes for which Parliament has authorised land to be held, especially where compulsory-purchase powers reflect a strong public interest and the 2006 Act provides no tailored means for a public owner to buy out village-green rights.
Applied here, educational purposes were incompatible with the rights that registration would create over the Lancashire land, and health purposes were incompatible with registration of the Surrey land. The question is one of statutory construction by comparing the purposes for which the land is held with the rights claimed, not an inquiry into how the authority happens to be using the land or what it proposes in the foreseeable future.
The Court refused permission to argue, for the first time, that recreational use of the Surrey land was by implied permission and therefore not “as of right”. The point had not been taken before the inspector, and passive acquiescence is not enough to imply permission.
The dissents
Lady Arden agreed that incompatibility can defeat registration, but held that it is not enough that statutory powers could theoretically be used inconsistently with village-green rights. There must be actual inconsistent use, or a reasonably foreseeable future use, under those powers. She would have allowed the Lancashire appeal only for areas A and B, where current school use and safeguarding duties were incompatible, and would have remitted the Surrey case for findings on foreseeable health use. Lord Wilson would have dismissed both appeals. He read Newhaven as turning on a conflict between section 15 and specific earlier duties relating to a particular working harbour, and considered that incompatibility should be assessed practically, as in the highway-dedication cases, rather than as a theoretical comparison of statutory powers.
Verdict: The Court allowed both appeals by a majority. Registration as a town or village green was incompatible with the statutory purposes for which the Lancashire school land and the Surrey hospital land were held. It refused permission to raise the new point about implied permission in the Surrey proceedings.
