Town & village green: Supreme Court hands public bodies the silver bullet

Supreme Court has recently given its Judgment in a combined appeal[1]  by two public bodies, NHS Property Services (NHS) and Lancashire County Council (Lancs), against orders designating certain areas of land they own as town or village greens (TVGs).

The case is of interest because it significantly widens the range of publicly held land which will potentially avoid a TVG designation. It also considers the manner in which Courts or Inspectors will analyse land held by public bodies to determine the purposes for which they are held.

In fact this decision is excellent news for all public and quasi-public bodies, which hold land and might be concerned that registration of TVGs might frustrate their intention to develop the land in accordance with their statutory objects.

TVGs

Section 15 Commons Act 2006 provides for the registration of land as a TVG where it can be shown that a significant number of the 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; and they continue to do so at the time of the application.

Case law prior to Lancs and NHS

In R (Newhaven Port & Properties Ltd) v East Sussex County Council[2] the Supreme Court considered the operation of Newhaven Harbour, owned by the Newhaven harbour company, which was subject to the Newhaven Harbour and Ouse Lower Navigation Act 1847. Section 49 of this Act provided that:

“maintain and support the said harbour of Newhaven, and the piers, groynes, sluices, wharfs, mooring berths, and other works connected therewith …”

and section 33 of the Harbours, Docks and Piers Clauses Act 1847, which provided that, subject to payment of rates -

“… the harbour, dock and pier shall be open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers.”

The Newhaven Town Council applied to designate a beach, owned by the harbour company, on the basis that it had been enjoyed by the public for 80+ years.

The Supreme Court decided (by a majority) that the case law on easements and (in Scotland) servitudes was analogous, and as such someone, who is said to have granted or dedicated a right (even if by omission), must have the capacity to do so. So, if it would be unlawful for a person, or other entity, to grant an easement, then it is not possible for them to be presumed to have granted one, by giving prescriptive rights (ie rights established by long term use without consent).

In many instances a public body does have the capacity to dedicate, and users can be lawful, so that the principle will not be a defence. However, there is another aspect. The purpose for which the land is acquired and held will need to be compatible with the rights said to have been granted and acquired. The Court pointed out that this principle did not depend on the principle of whether there was capacity.

Lords Neuberger and Hodge said:

Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes.[3]

The Supreme Court's view was that the registration of the beach as a TVG would clearly impede the harbour company in carrying out its statutory purpose, so the general nature of the Commons Act 2006 did not override the specifics which applied to the harbour company.

Consideration of Newhaven in Lancs and NHS

The battle grounds for Lancs and NHS were over whether the speeches in Newhaven were of general application, meaning that any land held for statutory purposes, whether used for that purpose or not, and regardless of future plans, could not be registered as a TVG.

The majority in the Supreme Court had no difficulty in reaching that view, stating:

The test as stated is not whether the land has been allocated by statute itself for particular statutory purposes, but whether it has been acquired for such purposes (compulsorily or by agreement) and is for the time-being so held.[4]

In Lancs and NHS what appears to have vexed the Court of Appeal, and the dissenting Judges in the Supreme Court was that they appear to have thought the effect of Newhaven should be more strictly confined to its facts, rather than of general application, regardless of the fact that Lords Neuberger and Hodge's speech in Newhaven is in such general terms. The Court of appeal and dissenters appear to favour a factual analysis of what the public body has used and might use the land for, and then an analysis of whether that is, or is not, compatible with the TVG claim.

Lords Carnwath and Sales (supported by Lady Black) are rather forthright in their views that this is not correct. They state:

It would be a strong thing to find that Parliament intended to allow use of land held by a public authority for good public purposes defined in statute to be stymied by the operation of a subsequent general statute such as the 2006 Act.[5]

and

In construing the 2006 Act it is also significant that it contains no provision pursuant to which a public authority can buy out rights of user of a town or village green arising under that Act in relation to land which it itself owns. That is so however strong the public interest may now be that it should use the land for public purposes. Since in such a case the public authority already owns the land, it cannot use any power of compulsory purchase to eradicate inconsistent rights and give effect to the public interest, as would be possible if the land was owned by a third party.[6]

Application to the land held by Lancs and NHS

The majority view in the Supreme Court was that it was not possible for the land held by Lancs to be used as a school (or playing field), whilst also allowing the level of public access which TVGs entail. Likewise, whilst their Lordships could see that whilst the NHS land was not yet developed it could be enjoyed by the public, however the land was held for the purpose of providing healthcare, which would not be possible, whilst the public enjoyed rights over it as a TVG.

Impact of the decision

These decisions are great news for public and quasi-public bodies, holding land, which may be subject to hostile TVG registrations. The law is now clear that where the purpose for which the land is held is incompatible with the rights involved in a TVG, the registration will not succeed.

This brings into sharp relief the need for public and quasi-public bodies to be clear about the purpose for which they hold land, at least internally, if not externally.

Those involved in local authority property will know that section 120 of the Local Government Act 1972 permits councils to use property, acquired for a specific purpose, for the purpose of any of the council’s functions, until it is required for the specific purpose. Section 122 then allows councils to change the purpose for which land is held (subject to certain restrictions, including in relation to common land and open space). Accordingly councils certainly have the tools available to them to protect their landholdings for the future.

Some other bodies are only able to hold land pursuant to their objects, and as such, designating specific purposes should not be a problem.

The myriad of other bodies, which have statutory objectives and purposes, should consider carefully what can be done to adequately document how land is held.

A recent Supreme Court decision has now made it far harder for a town or village green (TVG) to be registered against publically held land designated for schools, hospitals, playgrounds and other public purposes.  The case was a combined appeal by NHS Property Service


[1] R (on the application of Lancashire County Council) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs and another (Respondents), R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another (Respondents) [2019] UKSC 58

[2] R (on the application of Lancashire County Council) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs and another (Respondents), R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another (Respondents) [2019] UKSC 58

[3] [2015] UKSC 7; [2015] AC 1547

[4] [93]

[5] [56]

[6] [61]

[7] [64]