11 Jul 2019

Womble Bond Dickinson (WBD) is advising NHS Property Services Limited on a village green case to be heard in the Supreme Court next week (15 and 16 July). The outcome of this case could have wide implications for land held for statutory purposes. It concerns an area of land at Leach Grove Wood in Leatherhead, which neighbours an NHS hospital and is owned by NHS Property Services.

WBD is arguing to extend the principle of statutory incompatibility on behalf of its client and overturn the registration of the land as a village green. The arguments are:

  1. Implied permission, i.e. was the use by the public of the land during the 20 year period with the implied permission of the landowner as long as such use did not disrupt the exercise of the powers for which the land was held.
  2. Statutory incompatibility, i.e. does section 15 of the Commons Act 2006 apply to land which has been acquired by or on behalf of the NHS and which is held for statutory purposes, the exercise of which is or may be inconsistent with registration of the land as a town or village green.
  3. The two issues are inter-related and are to be considered together, albeit sequentially, as, if NHSPS is successful on the basis of implied permission, then the Court would not need to go on to consider the issue of statutory incompatibility. However, it is a conjoined appeal with Lancashire County Council, which will be pursuing the issue of statutory incompatibility in any event.

Antonia Murillo, Associate at WBD who specialises in town and village greens law, commented:

"The Supreme Court will be considering the potential impact of this case as the outcome may radically affect the status of publicly accessible land held by public authorities pursuant to statutory powers".

In 2013, an application was made for the land to be registered as a village green by local residents and, despite an Inspector's recommendation against this, Surrey County Council as Commons Registration Authority, registered the land. NHS Property Services successfully challenged this registration in the High Court in July 2016 but in April 2018 the Court of Appeal then upheld an appeal from Timothy Jones, which meant the designation of the woodland should be as a village green.

Rated by Chambers Legal Directory as a national leading practice for planning and infrastructure, WBD's planning team works 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.

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