The Supreme Court handed down an important judgement on the subject of Town and Village Greens (TVGs) in December. Recreational land can be registered as a TVG if an applicant can prove 20 years’ use for lawful sports and pastimes ‘as of right’ (without force, secrecy or permission). Registration severely limits the use of the land for development.

The case concerned two areas of land. One is a field next to a school in Lancashire, the other an area of woodland next to a hospital in Surrey. In 2018 the Court of Appeal held that both pieces of land should be registered as TVGs. The landowners, being the County Council as education authority and NHS Property Services Ltd, appealed to the Supreme Court on the basis that registration as a TVG was incompatible with the land being acquired and held for defined statutory purposes by a public authority, a principle known as statutory incompatibility.

The Supreme Court considered its own earlier judgment in the Newhaven case (2015), in which the judges said that the key question was whether section 15 of the Commons Act 2006 (which governs registration of TVGs) applies to land acquired by statutory bodies and which is held for statutory purposes that are inconsistent with its registration as a TVG. In Newhaven, the Supreme Court said that the answer to this question was no and refused to register an area of beach forming part of a port owned by a statutory harbour authority as a TVG.

The Supreme Court in the present case decided that registration of the land next to the school and hospital would leave it unavailable for use in fulfilment of the statutory bodies’ duties to provide education and health services because local inhabitants would have a right to use it at any time for lawful sports and pastimes. The correct test was whether the land had been acquired for statutory purposes and was still held for those purposes. Parliament could not have intended the effect of the 2006 Act to be that the use of land held by public authorities for good public purposes should be thwarted. The 2006 Act did not therefore apply to the land and it could not be registered as TVG.

This is a significant extension to the principle of statutory incompatibility; it still applies even if there is no immediate need for the land or if the public authority can carry out its functions without using it. It is a controversial decision and was made by a narrow majority of 3:2 judges.

The registration of land as a TVG has already been limited by the Growth and Infrastructure Act 2013, which prohibits an application being made for TVG status in relation to land which is the subject of a planning application or is earmarked for development in a local plan. This Supreme Court decision further limits the scope of the 2006 Act by effectively excluding all publicly owned land held for a statutory purpose from registration, and tips the balance further against the general public seeking to protect recreational spaces. It will therefore be welcomed by public bodies and reinforces the general trend that recreational land with development potential should be protected by the planning system rather than by applications for TVG registration. However the decision does not mean that landowners should neglect to control public access to their land as the risks of constraints on development such as registration of TVG, public rights of way and Assets of Community Value still remain. We can advise on such constraints and how to protect against them.