Registration of land as a town or village green can cause significant difficulties for landowners and developers, as it severely reduces the commercial value and use of the land. Landowners (particularly public bodies and local authorities) and developers should therefore be aware of the outcome of a recent Court of Appeal ruling that has clarified when land used by the public can be registered as a town or village green. The ruling is crucially important as it limits the cases where owners of land held for a statutory purpose may be able to rely on the statutory incompatibility test to prevent registration of their land as a town or village green.
Land used by the public is at risk of registration as a town or village green. To be registered as a town or village green, a significant number of the inhabitants of the locality, or of any neighbourhood within the locality, must have engaged in lawful sports and pastimes on the land for at least 20 years. The inhabitants also must continue to do so at the time of the application.
Such an application arose in the Supreme Court case of R (Newhaven Port & Properties Ltd) v East Sussex County Council  UKSC 7, that concerned an application to register an area of beach as a town or village green. In that case, registration as a town or village green was not possible because the beach was subject to statutory rights concerning its use as a harbour. The Supreme Court found that those rights were incompatible with the land also being a town or village green.
Similar facts seemed to arise in the two recent cases of Lancashire County Council v Secretary of State for Environment, Food and Rural Affairs and Bebbington  EWHC 1238 (Admin) and R(NHS Property Services Ltd) v Surrey County Council and Jones  EWHC 1517 (Admin):
- In the Lancashire case, an application was made to register land next to a school as a town or village green. The land in question was held for educational purposes by the Council.
- In the NHS case, an application was made to register an area of woodland next to a hospital as a village green. The woodland in question was held for healthcare purposes by NHS Property Services Ltd.
Like the earlier Newhaven case, it was argued in both cases that as the land involved was subject to statutory rights or duties (educational and medical in nature, respectively), registration of the land as a town or village green was incompatible with the land’s statutory purpose.
Interestingly, both the first instance judgements purported to follow the Newhaven case but the outcome of each case differed. Both cases were appealed; and those conjoined appeals were the subject of the Court of Appeal's ruling in Jones v R(NHS Property Services Ltd) & R(Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 721.
What did the Court of Appeal decide?
The central question for the Court of Appeal was: what is the effect of statutory rights and duties on the registration of land as a town or village green?
The Court of Appeal made clear that the critical test is whether or not the statutory rights or duties make the land incompatible for registration as a town or village green. The test consists of three central elements, satisfaction of which weighs in favour of incompatibility:
- There must be specific statutory purposes or provisions relating to the land.
- Parliament must have conferred on the landowner the powers to use the land for those specific statutory purposes, which are incompatible with the land's use as a town or village green.
- Registration as a town or village green must clearly impede, restrict or prevent the exercise of the statutory powers or duties relating to the land.
In the conjoined appeals of Lancashire County Council and NHS Property Services Ltd, the Court of Appeal decided these elements were not satisfied and the test of incompatibility was not met. This meant that the land could be registered as town or village green in both cases. Perhaps (unsurprisingly) given the impact of registration, Lancashire County Council has already applied to appeal to the Supreme Court.
When is land subject to statutory rights or duties at risk of registration as a town or village green?
In reaching its conclusion in the conjoined appeals, the Court of Appeal highlighted a number of characteristics that may weigh in favour of registration as a town or village green, despite its designation for a particular statutory purpose. The characteristics are as follows:
- The statutory powers or duties in relation to the land are general in their character and content, rather than specific.
- There are no statutory obligations to maintain or use the specific land in any particular way or to carry out any particular activities upon it.
- Registration might make performance of statutory duties more difficult or less convenient, but would not prevent those duties from being carried out.
- The statutory duties could be performed through use of the landowner’s other property assets, without recourse to using the land in question.
In Newhaven, the relevant statutory powers applied specifically to the trustees of Newhaven Port and set out specific obligations in respect of maintaining and using Newhaven harbour. This meant that those duties could not be carried out elsewhere. On the other hand, the court found that the land in both Lancashire and NHS Property Services was held pursuant to more general statutory purposes that were not specific to the land in question.
In Lancashire, the land was held by the local authority for ‘educational purposes’ in order to provide educational provision in its area. There was no statutory duty to provide a school on the land or to carry out any particular educational activity on it. There was also no evidence that the school wished to use the areas subject to registration other than for outdoor activities and sports, and such use would not be prohibited completely from taking place on the land. Crucially, it was found that the council could carry out its statutory education functions on its other land elsewhere in its area.
In NHS Property Services, the situation was similar as the land was held as part of the general duty to provide healthcare services, and there was no statutory duty to provide a hospital or other healthcare facility specifically on the land in question. Other land held by NHS Property Services Ltd could be used to meet the requirements of the general duty to provide healthcare services. It was said that registration of the land as a green does not prevent it being kept open, undeveloped and maintained as part of the hospital site.
Overall, the Court of Appeal held that ‘the ownership of the land by [a public body], and the existence of statutory powers that could be used for the purposes of developing the land in the future, was not enough to create a "statutory incompatibility”.’
Impact of the Court of Appeal’s Decision
The decision on statutory incompatibility has already been followed in R(Cotham School) v Bristol City Council  EWHC 1022. While Cotham School’s argument that the land should not be registered was successful on other grounds, the High Court (applying the Court of Appeal’s decision in Lancashire and NHS Property Services) rejected the school’s argument that it should not be registered on the grounds of statutory incompatibility. On this point, the court said that registration of the land would not prevent the carrying out of the school’s duties to provide suitable outdoor PE space, although it may now be less convenient because of registration. The registration also does not amount to a ‘disposal’ without the consent of the Secretary of State contrary to the Academies Act 2010.
In light of the Court of Appeal’s decision and its subsequent application in the Cotham School case, it seems likely that fresh village green applications may be encouraged over land held by public bodies for statutory purposes. It is possible that those statutory purposes may no longer be sufficient to protect the land from registration.
What can landowners and developers take from the ruling?
Where land is designated for a particular statutory purpose, landowners and developers need to make sure they are aware of the extent of the statutory rights or duties, and how those rights or duties interact with the land in question. It would be prudent not to simply rely on a statutory designation, but wherever possible take other steps to protect the land.
The Court of Appeal also commented on measures that can be taken to prevent ‘use as of right’ occurring. In a further blow to landowners, the court downplayed the effectiveness of occasional challenges by landowners to regulate the use of their land, such as by occasionally asking people to leave the land, keep to the perimeter or put dogs back on leads. The court made clear that an inspector is entitled to find that this kind of occasional challenge does not amount to sufficient regulation of the use of the land, so as to create ‘implied permission’ and prevent a successful town or village green application. It may in fact simply be viewed as an attempt to accommodate conflicting uses.
How can Burges Salmon help?
We have extensive experience of town or village green related matters and regularly provide fixed price reviews of town or village green risk for specific sites, including advice on the steps landowners can take to reduce the risk of registration applications. We have successfully defeated many town or village green applications at public inquiry, and have a strong understanding of the arguments and tactics required to produce the results our clients are looking for.