Supreme Court to hear key case on village greens and land held by public authorities

The Supreme Court is this week hearing a village green registration case that is said to have the potential “to radically affect the status of publically accessible land held by public authorities pursuant to statutory powers”.

Last year, the Supreme Court granted permission to appeal against the decision of the Court of Appeal in the co-joined appeals of Timothy Jones v NHS Property Services Ltd & R(Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ. 721.

The Supreme Court says the issues are:

• Does the concept of ‘statutory incompatibility’ apply to prevent land from being registered as a village green where it is held for general statutory purposes?
• What is the correct approach to alleged errors of fact in the public law arena?
• Does an application for registration of land as a village green have to show that there was a geographical spread of users from the locality in question?
• Does a qualifying locality under section 15 of the Commons Act 2006 have to have remained the same legal entity throughout the relevant 20-year period?
• What standard of reasoning is required by a Registering Authority which disagrees with an Inspector’s views?

The Lancashire case concerns an area of land (‘Moorside Fields’) which borders a primary school. Upon an application to register the land as a village green, an Inspector concluded that most of the land should be so registered, rejecting the Appellant’s arguments that the land was held for statutory purposes which were inconsistent with the registration of the land as a village green. The Appellant brought a claim for judicial review of this decision, which was unsuccessful in the High Court.

The NHS case concerns an area of land (‘Leach Grove Wood’), which neighbours an NHS hospital. An application was made for the land to be registered as a village green and an Inspector was engaged to conduct a non-statutory inquiry. Following this inquiry, the recommendation of the Inspector was that the land should not be registered, though this was on the basis that there was no relevant neighbourhood rather than on the basis of statutory incompatibility as had been argued by the Appellant. Despite the Inspector’s views, Surrey County Council nevertheless decided to register the land and the Appellant successfully challenged this registration in the High Court.

The Court of Appeal rejected the Appellant’s appeal in the Lancashire case and granted the Respondent’s (then Appellant)’s appeal in the NHS case, such that the registration of both plots of land was upheld. The Appellant landowners in both cases appealed to the Supreme Court.

Cornerstone Barristers said: “The case is relevant because it has the potential to radically affect the status of publically accessible land held by public authorities pursuant to statutory powers.”

Ashley Bowes of Cornerstone Barristers is representing Mr Jones and is instructed by Kristina Kenworthy from Richard Buxton Environmental and Public Law.

Jonathan Clay, also of Cornerstone Barristers, is representing NHS Property Services Ltd (together with George Laurence QC and Simon Adamyk) and is instructed by Womble Bond Dickinson.