Green light to develop green land

The legal protection of commons land has been dealt a blow by the Supreme Court which handed down a ruling effectively giving landowners the go-ahead to develop it.

The Commons Act 2006 allows for land that has been used for 20 or more years for informal recreation by locals, without challenge or permission, to be registered as a village green. Once registered, it is legally protected from development.

However, ‘statutory incompatibility’ can defeat an application by a member of the public to register land as ‘a green’ under the 2006 Act if that land is held by a public authority for statutory purposes.

The background

The Supreme Court heard conjoined appeals (R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another, and R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another [2019] UKSC 58).

One appeal concerned five areas of land adjacent to a Lancashire primary school. Against the backdrop of fears of impending development, a group of local residents applied to register the land as a green. However, the local council objected claiming the land was acquired for educational purposes under its statutory powers as education authority and that they may need the fields to expand the local school.

The High Court and the Court of Appeal each upheld the inspector’s decision that four out of the five areas should be registered. The inspector had not been satisfied the land was actually acquired and held for education purposes; even if it had been, there was no good statutory incompatibility defence available.

The council appealed and the Supreme Court allowed its appeal, though it was not a unanimous decision (two justices dissented). In their majority ruling, Lord Carnwath and Lord Sales found that the inspector’s finding was inconsistent with the evidence and “irrational”.

The central issue for the court was the interpretation and application of the statutory incompatibility ground of decision (see R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7). The difficulty identified by the court in this context related to the issue of interpreting the will of Parliament “because there is no indication that the concept of a modern green, as it has been developed by the courts, was part of the original thinking under the Commons Registration Act 1965”.

The test set out in that case was whether the land has been acquired by the public authority pursuant to its statutory powers and is held for the purposes of those powers, where those purposes are incompatible with registration of the land as a green – not whether the land has been allocated by statute for particular purposes.

Applying that test to this case, the majority decided that the statutory purposes for which the land is held was incompatible with its use as a green, so the Act did not apply.

The justices made reference to the “lack of indication that the general provisions in the Act regarding registration as a green were intended to have the effect of preventing use of land held by a public authority for specific public purposes defined in statute”.

The court stated that here, the rights claimed pursuant to registration of the land as a green were incompatible with its use for education purposes, including as playing fields or for constructing new school buildings. The council was not required to show they are currently being used for such purposes - only that they are held for such statutory purposes.

Partially dissenting, Lady Arden took the view that the fact a public authority holds land for statutory purposes that are incompatible with the use of the land as a green is not, in and of itself, sufficient to render it incapable of registration as a green. Her opinion was that the land must be shown to actually be being used (or it is reasonably foreseeable that it will be used) under those powers in a manner inconsistent with the public’s rights on registration as a green.

In the second appeal, the Supreme Court quashed the registration of woodland as village green on an appeal by the NHS.

What does this mean?

It will now be potentially harder for local residents to prevent public land owned by statutory bodies from being developed. It could have significant implications for public space across England and Wales.

Legal developments in recent years have already made it easier for the development of green space to take place. After the Growth and Infrastructure Act in 2013 came into force, the law change meant that land which had been subject to planning applications could not be granted village green status. This stemmed the flow of applications for registration of land as village green.

For now, campaigners say they will continue their calls for legislation to protect ‘green spaces’ from development.

Meanwhile, we could see a similar case reach the courts. In January 2020, another blow for local residents (this time in Miskin, Wales) came in the form of a failed application to have fields registered as a village green to prevent houses being built.

The planning inspector upheld the objections of the landowner (the Welsh Government). He ruled that it had not been demonstrated on the balance of probabilities that a significant number of Miskin residents had been involved in sports and pastimes on the land for at least 20 years.

Statutory incompatibility had been an issue put forward by the Welsh ministers as to why the claim for registration as a town or village green should be rejected, but that issue became academic in view of the inspector’s ruling on the 20-years requirement.

What’s to come?

In April this year, the Supreme Court is to hear an appeal in the case of TW Logistics Ltd v Essex County Council (UKSC 2018/0234), in which the question of statutory incompatibility is to be considered once again. At issue is whether part of the working port of Mistley, Essex was properly registered as a town or village green.

We will await the outcome with interest.

 

 

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