Supreme Court to hear key case on village greens and public authority land

The Supreme Court has agreed to hear conjoined cases over village greens, public authority-owned land and the concept of ‘statutory incompatibility’, it has been reported.

The Court of Appeal ruling in Lancashire County Council, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs & Anor [2018] EWCA Civ 721 was handed down in April this year.

In the first case, 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.

In the Lancashire case Douglas Edwards QC and Jeremy Pike of Francis Taylor Building, instructed by Sharpe Pritchard, appeared for the county council. Tim Buley of Landmark Chambers appeared for the Secretary of State for the Environment, Food and Rural Affairs, instructed by the Government Legal Department. Ned Westaway of FTB, instructed by Harrison Grant, acted for the Interested Party, Janine Bebbington, who had applied for the land to be registered as a village green.

In the NHS Property Services case, Dr Ashley Bowes of Cornerstone Barristers appeared for Timothy Jones, the application for registration, instructed by Richard Buxton Environmental and Public Law. Jonathan Clay and Matthew Lewin of Cornerstone Barristers, instructed by Capstick Solicitors, appeared for the NHS Property Services.