11 Dec 2019

Today's Supreme Court joint decision on village greens involving a site in Surrey on land owned by NHS Property Services (the NHSPS Case)[1] and also in Lancashire[2] is arguably more significant for public authorities where their land is subject to town and village green (TVG) applications or registration than previous decisions handed down by the Supreme Court in in Barkas[3] and Newhaven[4] which were themselves game changers.

In Barkas, the Supreme Court overturned the decision of the House of Lords in Beresford,[5] another TVG case where land owned by Sunderland City Council was registered as a TVG. In that case the land was acquired ""under very wide powers" contained in the New Towns Act 1965 by Washington Development Corporation,…". The House of Lords rejected arguments made in respect of use by way of implied licence and arguments based on statute. The Supreme Court, and in particular Lord Carnwath considered that Beresford was wrongly decided whilst deliberating on issues raised in Barkas.

The Supreme Court decision in Newhaven handed down almost a year later found a statutory incompatibility between the Commons Act 2006 (2006 Act) "and the statutory regime which confers harbour powers… to operate a working harbour…" which included obligations to maintain and support the harbour. Essentially, the Court found the Harbour statutes trumped the 2006 Act. However, the judgment also stated "The ownership of land by a public authority, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility."[6]

The leading majority judgment in the NHSPS case discussed the reasoning in Newhaven in detail and found that "The issue of incompatibility has to be decided by reference to the statutory regime which is applicable and the statutory purposes for which the land is held, not by reference to how the land happens to be being used at any particular point in time."[7] The point being that a general statutory power should be sufficient to exclude the provisions of the 2006 Act.

From a practical point of view, public authorities now have another defence of statutory incompatibility in addition to those set out by Parliament under the Growth and Infrastructure Act 2013 (2013 Act) and the trigger points provided by that Act. The decision in the NHSPS case should make a robust defence in respect of TVG applications easier for public authorities to sustain. As an alternative, public authorities may also wish to review any registration of publicly owned land registered as TVG and seek rectification under S 14 of the Commons Registration Act 1965. That process of itself is not straightforward. An application has to be made to the courts who have to consider not just whether a mistake had been made in the original registration but also if it would be just to order rectification. This decision should also assist public bodies which are driving forward the disposal of surplus land particularly for housing as it will help reduce the risk of delivery pending formulating a planning application or the other triggers in the 2013 Act. Equally it may assist public sector delivery partners in their bids for sites where there may have otherwise been a risk of an application. It is important however that the statutory purpose of ownership is fully investigated. 

TVG issues are still going to be litigated and another TVG case is waiting for permission to proceed to the Supreme Court. However, the parameters for successful TVG applications have just been narrowed.

Claire Brook and Antonia Murillo of Womble Bond Dickinson successfully acted for NHS Property Services on the NHSPS Case instructing George Laurence QC, Simon Adamyk of New Square Chambers and Jonathan Clay of Cornerstone Barristers.

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[1] R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another

[2] R (on the application of Lancashire County Council) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs and another

[3] R (on the application of Barkas) (Appellant) v North Yorkshire County Council and another (Respondents) [2014] UKSC 31

[4] R (on the application of Newhaven Port and Properties Limited) (Appellant) v East Sussex County Council and another (Respondents) [2015] UKSC 7

[5]R (Beresford) v Sunderland City Council [2004] 1 AC 889

[6] Paragraph 107 Newhaven

[7] Paragraph 66