The Supreme Court has granted permission to appeal against the decision of the Court of Appeal in the co-joined appeals of R(Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs and Timothy Jones v R(NHS Property Services Ltd) [2018] EWCA Civ. 721. Harry Campbell is instructed by Ms Bebbington, the applicant to register the land in the Lancashire case.
The question the Supreme Court will consider is: where land is held under statutory powers, when does the concept of “statutory incompatibility” defeat an application to register a town or village green under section 15 of the Commons Act 2006?
The High Court approached this question in two differing ways. Ouseley J took a narrow view of the principle in Lancashire CC v SSEFRA & Bebbington [2016] EWHC 1238 (Admin.), whereas Gilbart J took a wider view in R(NHS Property Services Ltd) v Surrey County Council & Jones [2016] EWHC 1517 (Admin.). The Court of Appeal, favouring the approach taken by Ouseley J, decided that the principle of statutory incompatibility arose in the following narrow circumstances:
(i) There must be specific statutory purposes or provisions attaching to the particular land sought to be registered as a town or village green which give the landowner powers to use that land for specific purposes.
(ii) Registration of the particular land as a town or village green must be likely to "clearly impede", or "prevent" or "restrict" the exercise of any statutory power, or the discharge of any statutory duty, relating specifically to that particular land".
In consequence, the Court of Appeal decided that statutory incompatibility does not arise where:
(i) The land which is sought to be registered is held under statutory powers which are general in character and content. For instance, where there is no statutory obligation to maintain or use the land in question in a particular way, or to carry out any particular activities upon it.
(ii) Registration of the land as a town or village green would merely make it more difficult or less convenient for the landowner to carry out its general duties but would not prevent the landowner from carrying out any particular statutory function relating specifically to the land. For instance, registration could reduce the pool of sites owned by a local authority to fulfil its duty to provide schools but would not prevent it fulfilling that duty on other sites.
The Supreme Court now has the opportunity to consider the application of its judgment in R(Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7. In that case the Supreme Court found that a stretch of tidal foreshore at Newhaven Harbour could not be registered as a new green because the landowner would not be able to maintain a harbour at Newhaven as required under the provisions of the Newhaven Act 1847. This is because it could not, for instance, dredge the seabed and foreshore because, under what are known as the "Victorian Statutes" it would be a criminal offence to damage the green or interrupt its use and enjoyment as a place for exercise and recreation or to encroach on or interfere with the green.
Interestingly, Lord Carnwath JSC delivered his own additional judgment in Newhaven in which he found that it was at least arguable that there was not statutory compatibility with registration, but with the restrictions placed on the landowner being subject to the specific statutory obligations in relation to the land. Lord Neuberger PSC (who delivered the leading judgment in Newhaven) has now retired,these appeals may therefore give Lord Carnwath the opportunity to nuance the principle of statutory incompatibility.