Elliot Cuozzo, real estate trainee solicitor, considers a recent ruling.

The Supreme Court has inflicted a significant blow on the legal protection of commons land. Section 15 of the Commons Act 2006 allows land which has been used for recreational purposes by a significant number of locals for 20 or more years to be registered as a town or village green (TVG). TVG status would then grant legal protections to the land from development.

However, an application to register land as a TVG can be defeated if there is a ‘statutory incompatibility’. This is when the land concerned is held by a public authority for statutory purposes. The test for determining this is whether the land held has been allocated by a statute for a particular statutory purpose.

The facts

The Supreme Court heard conjoined appeals to consider the status of land owned by Lancashire County Council (LCC) and NHS Property Services Ltd (NHS).

The LCC case concerned 13 hectares of land adjacent to a primary school in Lancaster. The land had been originally acquired by the council under the Education Act 1944 for educational purposes. Part of the land was being used for the construction of an extension to the school as well as providing the school with a playing field. Barring being subject to mowing agreements, the remaining land was unused. The Court of Appeal had ruled that, as the LCC had not been granted powers to use the land for a specific statutory purpose, registration of the land as a TVG could therefore happen.

The NHS case concerned 2.9 hectares of woodland adjoining a hospital. The land was held under the National Health Service Act 2006 for the provision of primary medical services in the local area. Again, the Court of Appeal held that the land was not being used for a specific statutory purpose and that holding the land in the possibility that it might be used by the NHS in the future was not sufficient to be a statutory incompatibility.

Decision 

The Supreme Court held on a 3 to 2 majority that the relevant test was not whether the land was being held for a specific statutory purpose. Instead the correct test was whether the land had been acquired generally for statutory purposes and at the current time is held for that purpose.

In the LCC case, it was held that the registration of the whole of the land would be in conflict with the possible construction of new school buildings and additional playing fields. Although the land was not being used for those purposes currently, the fact that it may be so used in the future was sufficient for there to be a statutory incompatibility.

A similar decision was reached in the NHS case, as registration of the land concerned as a TVG would conflict with the potential use of the land for the provision of medical services in the local area.

Implications 

The Supreme Court’s verdict will grant substantial protection to land acquired by public authorities using their statutory powers, inevitably disappointing community groups and open space campaigners. Such higher levels of protection may even encourage public authorities to review prior TVG registrations.

Nevertheless, it remains good practice for public authorities to take practical steps to protect their land. Examples include issuing formal permissions to those carrying out public activities or placing prohibitory signage on the land concerned.

Given the significant dissenting opinion in this case, the issue is bound to come before the courts again. In April this year, the Supreme Court is set to hear another appeal against TVG registration in the case of TW Logistics Ltd v Essex County Council (UKSC 2018/0234), which concerns a working quay in the Essex port of Mistley.

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