Council and NHS Property Services lose Court of Appeal cases on village greens

The Court of Appeal has handed down a key ruling in conjoined cases covering village greens, land owned by public bodies and the concept of “statutory incompatibility”.

In the first case in Lancashire County Council, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs & Anor [2018] EWCA Civ 721 the Court of Appeal dismissed an appeal brought by Lancashire County Council, as local education authority, over a High Court judge’s upholding of an inspector’s decision to register part of land near a primary school in Lancaster as a village green. In 2016 Mr Justice Ouseley had dismissed the county council’s challenge to the registration.

In the second case the Court of Appeal allowed an appeal by Timothy Jones against a ruling in July 2016 by Mr Justice Gilbart. The latter had upheld a judicial review challenge brought by NHS Property Services over the decision of Surrey County Council to register land near Leatherhead Hospital as a village green.

The key question in both cases set out by Lord Justice Lindblom was: Did the concept of "statutory incompatibility" defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? This was in the light of the Supreme Court ruling in the village green case of R(Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7.

The judgment can be viewed here.