No real consensus on village green cases at the Supreme Court

Two appeals have been heard in the Supreme Court in relation to applications to register land as a town or village green.

The cases are R (on the application of Lancashire County Council) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs and another (Respondents); and R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another (Respondents).

The principal issue in these two appeals related to the circumstances in which the concept of “statutory incompatibility” will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In R (Newhaven Port & Properties Ltd) v East Sussex County Council, it was held that the duty under section 15 of the Commons Act 2006 did not extend to an area held under the specific statutes relating to the Newhaven Harbour. In these two cases, the court was asked whether the same principle applied to land held by statutory authorities under more general statutes, relating respectively (in these two cases) to education and health services.

Although the two appeals raise similar issues, they were dealt with by different procedural routes. The first (Lancashire) was within the area of a “pilot” scheme under the Commons Registration (England) Regulations 2008, under which, where the registration authority (in this case Lancashire County Council) had an interest in the land, applications were referred for determination to the Planning Inspectorate. The second case (Surrey) was not covered by the pilot scheme. The application was determined by Surrey County Council as registration authority, following a non-statutory inquiry before a barrister appointed by the council.

The appeals were heard together by the Court of Appeal and, by a majority, the court upheld the first-instance decision to register in both cases. However, there was considerable variance in the judgments, and one judge would have dismissed both appeals.