NHS Property Services Ltd, R (on the application of) v Surrey County Council & Anor

Registration of land as a town or village green determines the landowner’s civil rights and obligations. Where a landowner has made a properly advanced objection, the registration authority must give intelligible reasons addressing the statutory criteria and the principal legal objections.

The statutory incompatibility exception requires a case-specific analysis of the actual statutory powers under which the land is held. Registration is unavailable where those powers and registration as a green are incompatible, even if the land has not yet been used for the statutory purpose and no future plan exists.

NHS Property Services Ltd sought judicial review of Surrey County Council’s decision to register Leach Grove Wood as a town or village green under section 15 of the Commons Act 2006. An inspector had found qualifying recreational use but concluded that the claimed area was not a neighbourhood within a locality and recommended refusal.

The Council’s committee rejected that recommendation and approved registration. It did not address the landowner’s objection that registration was incompatible with the statutory purposes for which NHS bodies held the land. The principal issues were the duty to give reasons, the adequacy of the neighbourhood reasoning, statutory incompatibility and procedural fairness.

1. Duty to give reasons. Registration determines civil rights and obligations because it permits public use of privately owned land and restricts the owner’s ability to use or develop it. Article 6 of the Convention therefore required reasons. The common law also required reasons where, as here, a landowner had made a properly advanced objection.
2. Standard of reasoning. Reasons had to be intelligible and deal adequately with the substance of the principal controversial issues. In a registration case, the losing party had to know why it lost and the legal justification for the decision. The Council was required to address both the section 15 criteria and the statutory incompatibility objection.
3. Neighbourhood. Whether an area was a neighbourhood was substantially a matter of impression and fact. The committee was entitled to form its own view rather than adopt the inspector’s assessment. Its conclusion that the claimed area had sufficient cohesion was reasonably open to it. An electoral ward was plainly a locality, while the claimed polling district was not.
4. Statutory incompatibility. The approach in R (Newhaven Port and Properties Ltd) v East Sussex CC required examination of the actual statutory powers under which the land was held. NHS bodies had no general power to hold land for recreation. Their powers were directed to health purposes, and uses such as hospital buildings, clinics, administration or car parking would substantially conflict with use as a village green. Actual use, present plans and the absence of development were immaterial. The Inspector’s contrary approach was erroneous.
5. Fairness and outcome. The Council’s failure to place the claimant’s response before the committee was procedurally defective, but caused no substantial prejudice and relief was refused on that ground under section 31(2A) of the Senior Courts Act 1981. Ground 5 succeeded. The registration of 6 October 2015 was quashed and the application was remitted to the Registration Authority for redetermination. Costs were ordered on a reduced basis. Permission to appeal was granted.

This was a first-instance judicial review. The judgment records that permission had previously been granted on Grounds 1–3 and 5, while permission on Ground 4 was granted at the hearing. The registration was quashed and remitted for redetermination.