The Supreme Court recently handed down an important decision affecting the registration of town and village greens. The Justices hearing the appeal in R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs* and R (NHS Property Services Ltd) v Surrey County Council** held that land owned by public authorities cannot be registered as town or village greens under section 15 of the Commons Act 2006 because this would conflict with the statutory purposes for which the land is held.
Town and Village Greens
A town or village green is an area of land which has been used by a significant number of local inhabitants as an area to play sports or indulge in pastimes for at least 20 years. If land is registered as a town or village green then you may commit a criminal offence if you:
Drive or park, without lawful authority, on the land;
Interrupt its use or enjoyment for recreation; or
Damage or encroach upon the land.
In 2012 the Department for Environment, Food and Rural Affairs published a consultation expressing concern about the number of applications local authorities receive to register areas as town or village greens. The consultation highlights the need to protect areas for use by the public with the need to avoid frustrating developments which are needed by the wider community such as optical transmission lines, electricity stations and telecommunication masts.
The registration of areas as town and village greens is therefore an area of concern for both local authorities and tech companies.
The Case Law
The Lancashire case concerned an area of land adjacent to Moorside Primary School. The land was held by Lancashire County Council, acting under its powers as the education authority, for statutory education purposes.
The NHS case related to an area of land adjacent to Leatherhead Hospital and held for statutory health purposes under the National Health Services Act 2006.
In both cases it was found that there had been sufficient qualifying use of the land, by local inhabitants, for more than 20 years to enable the registration of the lands as town and village greens. Successful registration would prevent the authorities from using the land for their prescribed statutory purposes.
The court held that the lands in both cases were held for specified statutory purposes and that registration as a town or village green would conflict with those purposes.
In overturning the decisions of the Court of Appeal, the Justices established the test for statutory incompatibility:
The land must be acquired for statutory purposes;
The land must, for the time being, be held for those purposes. The land does not need to be used for those purposes;
The statutory purposes for which the land is held is incompatible with the use of that land as a town or village green.
These decisions build on the previous case law established by R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and another*** and British Transport Commission v Westmorland County Council****.
In Newhaven the Supreme Court found that the passage of time would not give rise to prescriptive rights against a public authority which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes.
In Westmorland a railway company was authorised by statute to buy land for the purposes of operating a railway and to build bridges across it. On one of its bridges it built a footpath, which the public had used for more than 20 years. The question was whether, in light of the limited statutory purposes for which it could hold land, the company could have dedicated the footpath as a public highway. The court held that the answer was to be found by determining whether the use of the footpath by the public was incompatible with the statutory purposes and found that:
incompatibility was a question of fact;
the test was pragmatic;
the question was whether it was reasonably foreseeable that the public use of the footpath would interfere with the company’s use of its land in the exercise of its powers for the statutory purposes; and
the burden lay on the company to establish that it was reasonably foreseeable.
The NHS and Lancashire cases develop this case law by allowing statutory incompatibility in cases where the relevant Act of Parliament conferring the statutory power does not specifically identify the land in question. It is now available in any case where a public authority holds any land further to a specific purpose defined by an Act of Parliament.
Technology companies, especially those purchasing land for development or infrastructure from public sector landowners, will benefit from the ruling. Previously, competing company groups could use the registration process to frustrate developments which they opposed and then claim that the development would interrupt the use of the land. This applies not only to house builders but also to railway companies and service providers hoping to purchase land to construct other major infrastructure. Where there are active company groups opposing the development, this decision, along with the introduction of the Growth and Infrastructure Act 2013 and “trigger events”, makes undermining the development process using this technique far more difficult. However, a search should still be carried out using a Con 29 enquiry form to identify whether the land is currently registered as a town or village green.
* R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs  UKSC 58.
** R (NHS Property Services Ltd) v Surrey County Council  UKSC 58.
*** R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council  UKSC 7.
**** British Transport Commission v Westmorland County Council  AC 126.
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