R (Lancashire County Council) v Secretary of State for the Environment

The central legal principle decided is that the concept of "statutory incompatibility", as explained in the majority judgment in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] AC 1547, can preclude registration of land as a town or village green under section 15 of the Commons Act 2006 where the land has been acquired and is held for statutory purposes which are incompatible with registration. The court held that this principle is not limited to narrowly framed harbour statutes but applies where land is held by a public authority pursuant to statutory powers and registration would be incompatible with the statutory purposes for which the land is held.

On the facts the court found (i) in the Lancashire appeal that Areas A to D were properly to be regarded as held for statutory educational purposes and that there was a statutory incompatibility with registration of those areas as greens (the inspector's contrary factual conclusion was irrational and wrongly discounted the significance of the 1944 Education Act record); and (ii) in the Surrey appeal that the land held by NHS Property Services was held for health purposes under the National Health Service Act regime and registration was incompatible with those statutory purposes. The appeals were allowed.

Background and nature of the applications:

• Two separate applications to register land as town or village greens under section 15 of the Commons Act 2006 were contested: Moorside Fields adjacent to Moorside Primary School in Lancashire (application by a local resident) and Leach Grove Wood adjoining Leatherhead Hospital in Surrey (application by local residents).
• The issue before the Supreme Court was whether land held by a public authority for statutory purposes can be registered where the statutory regime under which the land is held is incompatible with registration (the doctrine of "statutory incompatibility" as explained in Newhaven).

Procedural history:

• Lancashire: application to register made in 2010; Planning Inspector recommended registration of Areas A–D; Ouseley J in the Administrative Court upheld the inspector’s decision ([2016] EWHC 1238 (Admin)); Lancashire County Council appealed to the Court of Appeal which upheld registration ([2018] EWCA Civ 721); Lancashire appealed to the Supreme Court.
• Surrey: application made in 2013; non-statutory inspector recommended refusal but Surrey County Council registered the land (5 October 2015); Gilbart J quashed registration on JR ([2016] EWHC 1715 (Admin)); the Court of Appeal reversed and reinstated registration ([2018] EWCA Civ 721); NHS Property Services appealed to the Supreme Court.

Issues framed:

1. Whether the majority reasoning in Newhaven should be applied generally to land held by public authorities under statutory powers, such that land acquired and held for statutory purposes incompatible with registration cannot be registered as a town or village green under section 15 of the 2006 Act.
2. Whether the Lancashire land was in fact held for educational purposes.
3. Whether public recreational use could be characterised as "by right" through implied permission in respect of land held by a public authority.

Court’s reasoning and conclusions:

• The court (majority: Lord Carnwath and Lord Sales, Lady Black agreeing) read the majority reasoning in Newhaven broadly: where land has been acquired and is held for defined statutory purposes, and there is an incompatibility between those statutory purposes and the operation of section 15, the 2006 Act does not apply to permit registration. The incompatibility question is one of statutory construction informed by analogous authorities on prescription, dedication and the capacity of public authorities to permit rights over land.
• Applying that principle, the court concluded that the Lancashire authority had acquired and held Areas A–D for statutory educational purposes. The inspector’s contrary finding was irrational and she had failed to give proper weight to evidence (in particular the section 87(3) Education Act 1944 endorsement) showing acquisition for education. Registration would be incompatible with the statutory purposes (notably in relation to safeguarding and the need to provide school accommodation/playing space), so registration should not stand.
• On the Surrey facts the court concluded that the land was held for health-related statutory purposes and that registration would be incompatible with those purposes; Gilbart J’s conclusion that registration was incompatible was correct on proper analysis and the registration should be quashed.
• The court rejected a new argument that passive acquiescence by a public authority should amount to implied permission making recreational use "by right"; existing authority requires an overt act or other clear basis for an implied public permission and passive acquiescence alone is not sufficient.

Separate judgments: Lady Arden and Lord Wilson dissented in part. Lady Arden would have applied a fact-dependent foreseeability test for incompatibility (requiring showing that it is reasonably foreseeable that statutory powers would be exercised in a way incompatible with registration) and would have remitted aspects of the Surrey case. Lord Wilson would have dismissed both appeals, preferring a narrower reading of Newhaven.

Appeals allowed. The Supreme Court, applying and extending the reasoning in the majority judgment in R (Newhaven Port & Properties Ltd) v East Sussex County Council, held that where land has been acquired and is held by a public authority for defined statutory purposes and those statutory purposes are incompatible with registration under section 15 of the Commons Act 2006, the 2006 Act does not apply to permit registration. On the facts, Areas A–D in Lancashire were held for statutory educational purposes (the inspector’s contrary conclusion was irrational) and registration would be incompatible; similarly the Surrey land was held for statutory health purposes and registration was incompatible. The appeals were therefore allowed.

High Court (Administrative Court): Lancashire - Ouseley J upheld inspector ([2016] EWHC 1238 (Admin)); Surrey - Gilbart J quashed registration ([2016] EWHC 1715 (Admin)). Court of Appeal: both appeals considered together, registration upheld ([2018] EWCA Civ 721; [2018] 2 P & CR 15). Supreme Court: appeal allowed ([2019] UKSC 58).