R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another

Land held by a public authority under statutory powers is incapable of registration as a town or village green where the recreational rights arising from registration would be incompatible with the statutory purposes for which the land is held. The incompatibility is determined by construing the relevant statutory regimes. It does not depend on the authority’s present use of the land or its plans for future use.

The principle extends to land held under general statutory powers. The land need not have been allocated by an enactment to a particular undertaking or location. Passive acquiescence by a public authority in recreational use does not amount to implied permission. The authority must communicate permission through words or overt conduct.

These conjoined appeals concerned applications under section 15 of the Commons Act 2006 to register publicly owned land as town or village greens. Lancashire County Council held Moorside Fields for statutory educational purposes. NHS Property Services Ltd held Leach Grove Wood under the statutory health-service regime.

The inspectors rejected statutory incompatibility. In the Lancashire proceedings, Ouseley J upheld the decision: [2016] EWHC 1238 (Admin). In the Surrey proceedings, Gilbart J quashed the registration: [2016] EWHC 1715 (Admin); [2017] 4 WLR 130. The Court of Appeal ordered registration in both cases: [2018] EWCA Civ 721; [2018] 2 P & CR 15.

The central issue was whether statutory incompatibility arises only from legislation directed to particular land or also where land is acquired and held under general statutory powers whose purposes conflict with village-green rights.

1. By a majority, the appeals were allowed. Lord Carnwath and Lord Sales delivered the joint majority judgment, with which Lady Black agreed. Lady Arden partly dissented and Lord Wilson dissented.

2. The statutory-incompatibility principle stated in Newhaven applies where land has been acquired and remains held by a public authority for statutory purposes incompatible with town or village green rights. It is not confined to land expressly allocated by legislation to a particular undertaking or location. Nor is it confined to a statutory undertaker. General statutory powers under which a public authority acquires and holds land are sufficient.

3. Incompatibility is determined as a matter of statutory construction. The relevant comparison is between the statutory purposes for which the land is held and the rights arising under section 15 of the Commons Act 2006. The authority need not establish that the land is currently used for those purposes or that it has definite plans to use it. Parliament did not intend the general registration regime to frustrate the specific public interests expressed in the statutory powers under which public land is held.

4. Lancashire County Council’s land was, on the balance of probabilities, acquired and continuously held for statutory educational purposes. The inspector’s contrary assessment was irrational. She placed excessive weight on the absence of council resolutions and failed to appreciate the significance of the reference to section 87(3) of the Education Act 1944. Village-green rights were incompatible both with safeguarding pupils on the existing playing field and with future educational use of all four areas.

5. The Surrey land was held within the statutory health-service regime. There was no feasible health-related use of that land compatible with village-green rights. The issue depended on the purposes for which the land was held, rather than whether health functions could be performed elsewhere.

6. Permission to advance the new implied-permission argument in the Surrey appeal was refused. Passive acquiescence, even by a statutory authority empowered to permit recreation, does not make public use permissive. Permission must be communicated through words or overt and unequivocal conduct.

7. Lady Arden would have required current incompatible use or a reasonably foreseeable incompatible future use. Lord Wilson would have required a practical assessment of likely interference and would have dismissed both appeals. The majority declined to determine the extent to which the equivalence principle might preserve an owner’s existing uses after registration.

1. United Kingdom Supreme Court: By a 3–2 majority, allowed both appeals and held that neither site was capable of registration under section 15 of the Commons Act 2006: [2019] UKSC 58.

2. Court of Appeal: Allowed the appeal concerning the Surrey land, dismissed Lancashire County Council’s appeal, and upheld registration in both cases: [2018] EWCA Civ 721; [2018] 2 P & CR 15.

3. Administrative Court—Lancashire: Ouseley J upheld the inspector’s decision that Areas A to D should be registered: [2016] EWHC 1238 (Admin).

4. Administrative Court—Surrey: Gilbart J quashed Surrey County Council’s registration because it had failed properly to consider statutory incompatibility: [2016] EWHC 1715 (Admin); [2017] 4 WLR 130.