11 Dec 2019

Womble Bond Dickinson (WBD) has advised NHS Property Services Limited (NHSPS) on a successful Supreme Court appeal decision on a village green case announced today. It was a conjoined appeal with Lancashire County Council and the case has wide implications for land held for statutory purposes by public authorities.

The case concerned an area of land at Leach Grove Wood in Leatherhead, which neighbours an NHS hospital and is owned by NHSPS. It was subject to an application for village green status in 2013 and following a public inquiry and judicial review proceedings a final decision has now been made on that application.

WBD, instructing George Laurence QC, Simon Adamyk and Jonathan Clay of New Square Chambers and Cornerstone Barristers, argued that the principle of statutory incompatibility should include land held by NHSPS for statutory health purposes and that the decision of the Hon Mr Justice Gilbart in the High Court should be re-instated.

The Supreme Court majority judgment reviewed the leading judgments in the Newhaven decision of the Supreme Court in 2015 and allowed the appeals in respect of NHSPS and Lancashire County Council. The judgment goes on to confirm that "…the appeals should be allowed in both cases. On a true reading of the majority judgment in Newhaven on the statutory incompatibility point, the circumstances in each of these cases are such that there is an incompatibility between the statutory purposes for which the land is held and use of that land as a town or village green. This has the result that the provisions of 2006 [Commons] Act are, as a matter of the construction of that Act, not applicable…". The decision to register Leach Grove Wood as a Town or Village Green has therefore been quashed.

Antonia Murillo, Associate and Doctoral Researcher at WBD who specialises in town and village greens law and who advised the client commented:

"We're very pleased with this successful outcome for our client in the Supreme Court. The decision provides a useful clarification of the judgment in the Newhaven case and is good news for all public bodies that hold land for statutory purposes. A different outcome could have radically affected the status of publicly accessible land held by public authorities pursuant to statutory powers. This decision means that, in principle, public authorities should review those cases where public authority land has been registered as a village green with a view to removing the registration and equally can be more robust in resisting applications made on land when it satisfies the criteria."

A spokesperson from NHS Property services said:

As a government-owned company, our goal is to ensure the NHS makes the right property choices to enable excellent patient care. This Supreme Court judgment sets an important precedent to ensure we, and other public bodies, are able to continue to protect and realise benefits from the public sector estate. We are pleased to have taken a lead on this on behalf of the NHS and the public sector.”

Rated by Chambers Legal Directory as a national leading practice for planning and infrastructure, WBD's planning and real estate teams work for a broad range of clients including commercial developers in the energy, residential, transport, waste, manufacturing and retail sectors as well as many local authorities.

Ranking in the UK's top 20 law firms, WBD provides legal expertise in eleven key sectors from across eight offices in the UK, including London, and 19 offices in the US. The firm's key sectors include Financial Institutions; Real Estate; Insurance; Energy & Natural Resources; Healthcare; Manufacturing; Retail & Consumer; Transport, Logistics & Infrastructure; Pharmaceuticals, Biotechnology & Life Sciences; Technology and Private Wealth.

Read the full judgment here.

For more analysis, read our briefing: Can we now see the wood from the trees on village greens?