Out-Law News | 17 Dec 2019 | 11:33 am | 3 min. read
The UK's highest court, ruling in two joint cases, found that there was a "statutory incompatibility" preventing registration as a TVG of land owned by NHS Property Services (NHSPS) and Lancashire County Council. The land was held by public authorities for statutory health and education purposes respectively.
Planning law expert Elizabeth Nuttall of Pinsent Masons, the law firm behind Out-Law, said: "This is a long-awaited case which provides clarification of the judgment in the Newhaven Beach case of 2015".
The case confirms that where there is a conflict between the use for which the land is held by a public body and the registration of a TVG, the statutory purpose for which the public authority holds the land will prevail.
"The decision will be welcome news for public authorities whose land has been the subject of a TVG registration or which hold land for statutory purposes. Importantly, the case confirms that where there is a conflict between the use for which the land is held by a public body and the registration of a TVG, the statutory purpose for which the public authority holds the land will prevail, regardless of how the land was used at a particular point in time," she said.
"Inevitably, this will lead to public authorities reviewing cases where land has been registered as a TVG with a view to removing registrations and holding the land for its original public purposes," she said.
In England and Wales, section 15 of the 2006 Commons Act allows members of the public to apply for registration of land used by the public for recreational purposes as a TVG, restricting further development. The land must have been used 'as of right' and not by way of specific permission from the landowner, by a significant number of local inhabitants, for lawful sports and pastimes over a period of at least 20 years.
In 2015, the Supreme Court ruled against the registration of West Beach, Newhaven, as a TVG, allowing further development of the port area to go ahead. The case was decided on the grounds that use of the beach by the public had been 'by right', through local byelaws permitting recreational use, rather than 'as of right'. However, the judges also backed an argument by the landowners that there was a "clear incompatibility" between the landowner's statutory functions in relation to the harbour and registration of the beach.
In the latest cases, the Supreme Court had to decide whether this concept of "statutory incompatibility" extended to Moorside Fields, land lying adjacent to a primary school in Lancaster and held by the local authority in its capacity as education authority; and land at Leach Grove Wood, Leatherhead, which adjoins Leatherhead Hospital and is owned by NHSPS. The court, by a majority of three judges to two, found that it did, dismissing applications brought in both cases by local residents.
Lord Carnwath and Lord Sales, giving the judgment of the court, said: "On a true reading of the majority judgment in [the Newhaven case] on the statutory incompatibility point, the circumstances in each of these cases are such that there is an incompatibility between the statutory purposes for which the land is held and use of that land as a town or village green".
"We do not find the construction of the 2006 Act as identified by the wider reasoning of the majority in Newhaven surprising. It would be a strong thing to find that parliament intended to allow use of land held by a public authority for good public purposes defined in statute to be stymied by the operation of a subsequent general statute such as the 2006 Act. There is no indication in that Act, or its predecessor, that it was intended to have such an effect," they said.
Lady Arden and Lord Wilson issued dissenting judgments in the case, finding that the majority had interpreted the judgment in the Newhaven case too liberally. Lady Arden said that the landowner should be able to show "that the land is in fact also being used pursuant to [the statutory purpose], or that it is reasonably foreseeable that it will be used pursuant to those powers" in order to be able to resist an application for registration as a TVG.
Lord Wilson added that the efficacy of section 15 of the 2006 Act would be "substantially reduced" if public authorities which hold land for specified statutory purposes could resist any TVG application that was "theoretically incompatible with their purposes".
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