20th December 2019
Walker Morris’ town and village green (TVG) expert David Manda explain a recent Supreme Court decision which will have far-reaching implications for the protection and development of publicly-owned land.
The Lancashire County Council and NHS Property Services conjoined case  may prove controversial with open space campaigners, but popular with public landowners and with property developers, as it authoritatively limits the circumstances in which public authorities can be prevented from developing land.
In an earlier briefing, we explained in some detail TVG registrations and the legal and practical concerns for landowners and developers.
In short, any person may apply to register land as a TVG if a significant number of local inhabitants have indulged, as of right, in lawful sports and pastimes on the land for at least 20 years. Once land has been registered, it is afforded the highest form of protection, which can severely restrict future use and development.
In 2015, however, the Supreme Court in Newhaven  prevented registration of a beach as a TVG on the basis that registration was incompatible with the statutory purpose for which the land was held. This gave developers hope that land held under a statutory power could not be registered as a TVG.
Those hopes were curtailed somewhat by the decisions of the Court of Appeal in Lancashire County Council and NHS Property Services, but they have now been resurrected (and then some!) by the Supreme Court’s decision of 11 December 2019 in the conjoined appeal.
The Lancashire appeal concerned land adjacent to a primary school and owned by a local authority. The NHS appeal concerned an area of woodland in Surrey owned by the NHS. The issue for the Supreme Court to decide was the circumstances in which the concept of statutory incompatibility would defeat a TVG application where the land was held by a public authority.
The Supreme Court held (by a majority):
In the particular case, the Supreme Court held that the land in question could not be registered as a TVG. In relation to the Lancaster land, that would be incompatible with use for education purposes (including, for example and non-exhaustively, use as playing fields or for constructing new school buildings). In relation to the Surrey land, TVG registration would be incompatible with use for health-related purposes (including, for example and non-exhaustively, use as a hospital car park, clinic or for constructing new hospital or administrative buildings). In light of the statutory purposes for which the land was acquired and held, even if the land were surplus to requirements, use of the TVG registration process would not be a remedy.
Public landowners, and developers working with them, will welcome this case as it offers an additional and apparently robust defence to TVG applications where publicly-owned land was acquired, and is held, for statutory purposes. The case also seems to suggest that a fairly wide-ranging definition of ‘statutory purposes’ will be applied. As well as offering direct assistance for public authorities seeking to resist TVG applications per se, the case may indirectly assist those seeking to sell-off land for financial gain.
Public landowners and developers may therefore wish to review their portfolios, to investigate the potential for land deals previously thought to be thwarted by existing TVG registrations or possible TVG applications to proceed after all.
For expert advice in relation to any TVG registration, application or potential register-rectification, please do not hesitate to contact David Manda, who will be very happy to help.
 R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food & Rural Affairs (1) Janine Bebbington (2); and R (on the application of NHS Property Services Ltd) v Surrey County Council (1) Timothy Jones (2), conjoined appeals,  UKSC 58
 Taylor v Betterment Properties (Weymouth) Limited and Adamson & Ors v Paddico (267) Limited  UKSC 7
 R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council & Anor  UKSC 7