Supreme Court offers additional defence against TVGs on public land

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.

Why is this case of interest?

The Lancashire County Council and NHS Property Services conjoined case [1] 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.

What are the practical implications?

• This Supreme Court decision effectively provides public authorities who have acquired and hold land for statutory purposes with an additional and robust defence to TVG applications.
• That is so even where the land in question is not currently being used for any such purposes.
• It potentially follows, from the formulation of the statutory incompatibility test as set out in this decision, that general statutory powers should be sufficient to exclude the TVG regime altogether…
• …that should mean that the decision also assists public authorities who are seeking to dispose of surplus land for financial gain.
• The case may open the door for existing TVG registrations to be ‘undone’ via an application for rectification of the register of common land and TVGs under section 14 of the Commons Registration Act 1965 [2].

TVGs: The basics…

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.

…and statutory incompatibility

In 2015, however, the Supreme Court in Newhaven [3] 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.

Supreme Court confirms correct test

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):

• The balance between the interests of landowners and those claiming recreational rights should be respected.
• It was implicit in the decision of the Supreme Court in Newhaven that land could not be registered as a TVG if it was acquired and held by a local authority in the exercise of general statutory powers which were incompatible with use of that land as a TVG.
• The test is not whether the land had been allocated by statute itself for particularly statutory purposes, but whether it had been acquired for such purposes and was being so held.
• Although the Supreme Court in Newhaven referred to land acquired by a ‘statutory undertaker’, there was no reason to limit the test to statutory undertakers as such.
• A public authority does not have to show that the land is currently being used for statutory purposes, only that it is held for such purposes.
• Incompatibility has to be determined by reference to the statutory purposes for which the land is held, not by reference to how the land is used at any particular point in time.

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.

WM Comment

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.

[1] 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, [2019] UKSC 58

[2] Taylor v Betterment Properties (Weymouth) Limited and Adamson & Ors v Paddico (267) Limited [2014] UKSC 7

[3] R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council & Anor [2015] UKSC 7