R (on the application of Lancashire County Council) v Secretary of State for Environment, Food & Rural Affairs & Janine Bebbington: R (on the application of NHS Property Services Ltd) v Surrey County Council & Timothy Jones (2018)

Why is it important?

Confirms whether land held by a public body for a statutory purpose can also be registered as a town / village green.

What happened?

The Court of Appeal considered appeals against decisions concerning the registration of land as a town / village green under section 15 of the Commons Act 2006:

1. Lancashire County Council (LCC) applied for judicial review of a decision by the Secretary of State for Environment, Food and Rural Affairs to grant an application to register land as a town / village green. The LCC argued that the land was held for educational purposes and its registration as a town / village green would be incompatible with that statutory purpose.
2. NHS Property Services Limited applied for judicial review of a decision by Surrey County Council to register land as a town / village green, on the ground that the land had always been held for purposes relating to healthcare and its registration as a town / village green would be incompatible with that statutory purpose.

What did the court say?

In both cases, there was no statutory incompatibility.

1. In the first appeal, there was no statutory obligation to use the land in a particular way and the LCC would still be able to carry out its statutory educational functions if the public had the right to use the land for recreational purposes as a town / village green.
2. In the second appeal, there was no statutory obligation to provide a hospital / healthcare facility on the land. There was no inherent inconsistency between the provisions in the statutory regime under which the land was held and the statutory provisions for registration as a village green.

Take away

For statutory incompatibility to defeat the registration of land as a town / village green there has to be an inherent inconsistency between the statutory purpose for which the land is held and its use for public recreation.