The Supreme Court dealt a blow to supporters and users of village greens in a judgement handed down on 11 December. The court held by the slimmest of margins (a majority of 3/2) to quash the registration of two village greens, one in Lancashire and the other in Surrey. The decision will feel particularly unfair to campaigners whose registration was upheld by eminent judges in both the High Court and the Court of Appeal.

The decision does not spell the end of village green registration, but represents a further narrowing by the highest court in the country of the scope for such applications to succeed.

The right to register a statutory village green arises from legislation on the back of a royal commission in the mid 1960s. The commission recognised that areas of recreational land that had been used traditionally by local inhabitants since time immemorial were being lost to development and that a statutory right to register town or village greens should be provided to preserve these valuable open spaces for recreation. That right was given expression in the ensuing legislation. To overcome what would be an impossible evidential burden to prove centuries of traditional use, Parliament provided that it would be sufficient for an applicant to prove 20 years or more use for lawful sports and pastimes, where such us was "as of right" (that is to say use without permission, secrecy or force). Lawful sports or pastimes have been interpreted by the courts to include dog walking and general recreational activities, not just the more traditional village green pursuits of dancing around a maypole or playing cricket. The ‘as of right’ is a legal property principle which means that the right is being enjoyed openly and without the landowner's consent. It has been discussed in subsequent cases that a period of 20 years of open use is sufficient time for an owner to take steps to prevent such use if such owner has any objection to it.

The right to register a village green has increasingly been raised by well-informed objectors to thwart development of open spaces. The government significantly restricted the scope for such applications in the Growth and Infrastructure Act 2013 by expressly prohibiting an application for land that was already the subject of a planning application or ear marked for development in a local plan, irrespective of whether it had been used for sports and pastimes for 20 years or even centuries.

The next blow for village green registration came with a Supreme Court decision in 2015 when it quashed the registration of a beach and surrounding land which had been acquired by compulsory purchase for the use of the commercial port in Newhaven. The Supreme Court held that the Commons registration legislation was incompatible with the legislation that specifically permitted the compulsory acquisition of the Newhaven beach for port use. The case applied the principle of "statutory incompatibility" which effectively means that the statutory right to apply for registration of a town of village green does not apply, even where 20 years lawful sports and pastimes "as of right" can be established, where such registration would conflict with the exercise of compulsory purchase powers, as authorised by a specific statute.

The decision this month by the Supreme Court takes the principle of statutory incompatibility further still by extending it to preclude the right to register a town or village green where the land is publically owned (in this case by a health authority in Surrey and a school in Lancashire). The majority of the Supreme Court accepted the objectors' contention that publically held land should be protected against village green registration for the greater benefit of ensuring the authorities could put the land to public use, in pursuit of its statutory power and functions. This is a very marked extension to the principle of statutory incompatibility. It does not matter that the authority in question has no immediate need for the land, or that the authority could perfectly well discharge its functions without it.

The decision is controversial. It is difficult to resist the logic of the dissenting judge Lord Wilson who pointed out that it is one thing to find statutory incompatibility in the exceptional circumstances of a harbour acquired for the purpose of provision of a port, but another case where land the incompatibility is said to arise merely out of the power for public authorities to hold land. As he respectfully begins his dissenting judgement "Although I hold each of my three colleagues in the majority in the highest esteem, I am driven to suggest that today they make a substantial inroad into the ostensible reach of a statutory provision with inadequate justification.”

This further limits the prospect of securing any new town or village greens. Following this decision any publically owned land, be it by a council, MoD, NHS, education authority etc, will be protected against registration by application of the principle of statutory incompatibility.

The Supreme Court will have the chance to revisit the scope of village green registration again in April 2020 when it sits to hear the appeal in relation to the village green at Mistley on the Essex coast. Birketts represent the respondent Ian Tucker whose application first established village green status of this area of quayside. Unlike Newhaven or the recent case above, Mistley is a privately owned port.