Two appeals as 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 the first case, five plots in Lancaster were owned by LCC who objected to an application for registration as a village green based on 20 years use. As to four, the inspector was not satisfied that the land had been acquired for educational purposes, and even if so, there was no good statutory incompatibility defence. The second site was at Leatherhead owned by NHS. Surrey CC had registered it against the recommendation of the inspector, but this was quashed at first instance, distinguishing the LCC case saying that SCC had failed properly to consider statutory incompatibility. The Court of Appeal upheld both decisions to register, and LCC and the NHS now appealed.
Held: The appeal succeeded (Arden L dissenting in part, and Wilson L dissenting) Newhaven was authoritative and where land is acquired for defined statutory purposes by a public authority, the Act does not enable the public to acquire rights over that land by registering it as a green where such registration would conflict with those statutory purposes.
Here there was an incompatibility between the statutory purposes for which it was held and its use as a Green and therefore the Act did not apply.
Typically land acquired under general powers was not subject to specific purposes tests, as opposed to land acquired compulsorily.
There was no indication that the Act’s general provisions regarding registration as a Green were intended to prevent use of land held by a public authority for specific public purposes defined in statute.
This has particular force as to land held after compulsory purchase since the powers are created for circumstances where there is an especially strong public interest that land should be used for particular purposes.
There was statutory incompatibility in each case. The issue of incompatibility has to be decided by reference to the statutory purposes for which the land is held, not by reference to how the land happens to be used at a particular time.
Lords Carnwath and Sales said: ‘In our view, Ouseley J’s approach to the natural inferences to be drawn from the material before the inspector was correct, but he was wrong to be deflected by deference to the inspector’s fact-finding role. The main difference between them was in the weight given by the inspector to the absence of specific resolutions, from which she found it ‘not possible to be sure’ that the land had been acquired and held for educational purposes. On its face the language appears to raise the threshold of proof above the ordinary civil test to which she had properly referred earlier in the decision. But even discounting that point, she was wrong in our view to place such emphasis on the lack of such resolutions. Her task was to take the evidence before her as it stood, and determine, on the balance of probabilities, for what purpose the land was held. On that approach, Ouseley J’s own assessment was in our view impeccable.’
Judges:
Lord Wilson, Lord Carnwath, Lady Black, Lady Arden, Lord Sales
Citations:
[2020] 2 WLR 1, [2020] WLR(D) 18, [2019] UKSC 58, [2021] AC 194, [2020] JPL 613, [2020] 2 All ER 925, UKSC 2018/0094
Links:
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2019 Jul 15 am Video, SC 2019 Jul 16 am Video, SC 2019 Jul 16 pm Video
Statutes:
Jurisdiction:
England and Wales
Citing:
At Admn – Lancashire County Council v The Secretary of State for The Environment, Food and Rural Affairs and Another Admn 27-May-2016
Ouseley J he said that he would have arrived at a different conclusion from the Inspector as to the purpose for which the Authority had acquired the land at issue; but considered that that did not entitle him to interfere with the inspector’s . .
At CA – Lancashire County Council, Regina (on The Application of) v Secretary of State for Environment, Food and Rural Affairs and Another CA 12-Apr-2018
The court was asked: ‘Did the concept of ‘statutory incompatibility’ defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? ‘ At first instance, the judge had held that he could not . .
Cited – Regina v Suffolk County Council Ex Parte Steed and Steed Admn 1995
Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it . .
Authorititive – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Cited – Oxfordshire County Council v Oxford City Council and Another CA 24-Feb-2005
The court was asked as to the power to amend an application for registration of land as a village green, in the absence of any specific provision in the regulations permitting amendment. Guidance was sought for practitioners.
Held: The 1965 . .
Cited – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .
Cited – New Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Wiltshire Council v Cooper Estates Strategic Land Ltd CA 16-May-2019
The issue on this appeal is what it takes in a development plan document to identify land for potential development. If land is so identified, the right to apply for registration of a town or village green is suspended.
Lewison LJ said of these . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – E v Secretary of State for the Home Department etc CA 2-Feb-2004
The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted. . .
Cited – Ellice’s Trustees v The Commissioners of The Caledonian Canal SCS 28-Jan-1904
The commissioners of the canal did not have the power to grant a right of way which was not compatible with the exercise of their statutory duties, and that this also meant that no private right of way or servitude could arise by virtue of user of . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – The Lord Provost, Magistrates, and Council of The City of Edinburgh v North British Railway Co SCS 12-May-1904
It was not possible that a public right of way ‘which it would be ultra vires to grant can be lawfully acquired by user’ . .
Cited – The King v The Inhabitants Of Leake KBD 1833
The issue was whether villagers in the fenlands were obliged to repair a road. If it had been dedicated as a public highway, they were obliged to do so. The land on which the road had been constructed was owned by commissioners who had bought it . .
Cited – TW Logistics Ltd v Essex County Council and Another CA 5-Oct-2018
The Court was asked whether part of the working port of Mistley has been properly registered as a town or village green.
Held: The 19th century statutes, as applied to a registered modern green, are not to be construed as interfering with the . .
Cited – Winterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
Cited – Tabernacle Permanent Building Society v Knight 1892
The court considered (obiter) it’s lack of jurisdiction to make an order directing arbitrators to state their award in the form of a special case, at a time when the award had already been published earlier on the same day and the arbitrators . .
Cited – Newhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Ashworth Frazer Limited v Gloucester City Council HL 8-Nov-2001
A lease contained a covenant against assignment without the Landlord’s consent, such consent not to be unreasonably withheld. The tenant asserted, pace Killick, that the landlord could not refuse consent on the grounds that the proposed tenant might . .
Cited by:
Cited – Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Lists of cited by and citing cases may be incomplete.
Land
Updated: 15 May 2022; Ref: scu.645782