The Court of Appeal has confirmed that public bodies will only be able to avoid registration of their land as a town or village green (TVG) in very limited circumstances.
The decision gives public bodies some certainty. However, it sends the clear message that, in most cases, public bodies need to take action to avoid land being registered as a TVG.
So when could a TVG application in respect of land held for a statutory purpose fail? What do public bodies need to do to protect their land?
When can land be registered as a TVG?
Under The Commons Act 2006, any person can apply for land to be registered as a TVG where a significant number of 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.
Is the position different if the land is held for a statutory purpose?
In R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council and another , the Supreme Court decided that land could not be registered as a TVG where it is held by a public body for specific statutory purposes which are incompatible with it being a TVG.
That case concerned a working harbour. The Supreme Court concluded that there was "an incompatibility between the 2006 Act and the statutory regime which confers harbour powers on NPP to operate a working harbour…" If the beach was designated as a TVG, it would prevent the harbour authority from performing its statutory duties. Therefore, there was a clear statutory incompatibility and the beach should not be registered as a TVG.
In 2016, two TVG cases came before the courts. In both of these the issue of statutory incompatibility arose. The conclusions reached were inconsistent and public bodies have, therefore, been faced with uncertainty as to when the statutory functions for which the land is held will trump a TVG application.
Lancashire County Council v Secretary of State for Environment Food and Rural Affairs concerned land held by a local education authority. The judge rejected the argument that registration as a TVG would be incompatible with the carrying out of educational functions.
However, the judge in R (on the application of NHS Property Services Ltd) v Surrey County Council, came to a different conclusion in relation to land held for the statutory purpose of the NHS.
Could these decisions be reconciled? How would a public body know if its particular statutory purpose would be incompatible with registration as a TVG?
Clarification was provided by the Court of Appeal in April this year, when it considered the joint appeal of the 2016 cases. Lord Justice Lindblom, in giving judgment, differentiated between a specific statutory function and a general statutory function.
In the Newhaven case, if the land was registered as a TVG, a defined statutory purpose, in relation to that particular land, would be frustrated. This was not the case in relation to either the land being held for educational purposes in the Lancashire case, or the land being held for the NHS in the Surrey case.
Both landowners would be able to continue to carry out their statutory functions if the land were designated as a TVG. There was no need for the particular land that was the subject of the TVG applications for the continuation of the statutory functions. Carrying out these statutory obligations may be rendered more difficult if the land were registered as a TVG, but they would not be prevented. Therefore, there was no statutory incompatibility to prevent registration as a TVG.
What should land owners with statutory obligations do?
Lord Justice Lindblom commented that "the risk of registration could have been avoided by preventing or challenging the use of the land by members of the public, or by some clear act of permission.
The absence of such action might indicate that a public body owning the land has seen nothing inconsistent between the performance of its statutory functions and the recreational use of the land by members of the public within section 15 of the 2006 Act."
The message to public sector landowners is clear. To avoid registration of your land as a TVG, you must take positive action. It is not sufficient to rely upon the fact that the use for which you hold the land is constrained by statute. It is only in very limited circumstances that this will be sufficient to prevent land being registered as a TVG.
How can public bodies protect their land?
Public bodies must take the same action as any other landowner to ensure that the public is not able to use the land, as of right, for lawful sports and pastimes. This may include the construction of signs and fencing. Alternatively, express permission could be given to the use of the land.
Contributor: Alexandra Holsgrove Jones