15 November 2018 | Firm news | Article by Robert Phillips
The Supreme Court has agreed to hear the appeal of a decision made by the Court of Appeal in April 2018, involving a case concerning village greens, public authority-owned land and the concept of ‘statutory incompatibility’. We previously looked at the issue of statutory incompatibility in our blog in October.
In the case of R. (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs v Janine Bebbington and Timothy Jones v R. (on the application of NHS Property Services Ltd.), Surrey County Council  EWCA Civ 721, the Court of Appeal heard the two cases concurrently. The key question asked by the Court of Appeal in both cases was whether an argument of statutory incompatibility could defeat an application for registration as a town or village green under section 15 of the Commons Act 2006.
In considering the Lancashire case the Court of Appeal upheld the High Court’s decision that land adjoining a school, but belonging to the County Council, had been correctly registered as a town or village green, and that there was no statutory incompatibility between the County Council’s statutory powers and duties (in this case as a local education authority) and the registration of the land as a town or village green.
In making its decision the Court of Appeal considered the town or village green case of R(Newhaven Port and Properties Ltd) v East Sussex County Council and another  UKSC 7, in which the Supreme Court had in that instance found in favour of the public authority when considering the statutory incompatibility point. The April 2018 Court of Appeal decision in the Lancashire case therefore contrasted with the decision of the Supreme Court in the Newhaven case.
When considering the Newhaven case, the Court of Appeal noted that there was a ‘clear incompatibility’ between the County Council’s specific statutory purpose attaching to the land in question (in the case of Newhaven, this was operating the land as a working harbour) and the registration of the land as a town or village green. By contrast, the Court of Appeal referred to statutory powers attached to the land in the Lancashire case as general in their character and content, comprising a local education authority’s functions in securing educational provision in its area. There was no statutory obligation to maintain or use the land in question in a particular way, or to carry out any particular activities upon it. The Court of Appeal was not satisfied that registration as a town or village green would "clearly impede", or "prevent" or "restrict" the exercise of any statutory power, or the discharge of any statutory duty, relating specifically to that particular land. In essence, the Court of Appeal found that the County Council could carry out its statutory powers at the same time as the land being registered as a town or village green.
Following the Newhaven case, Landowners may have felt confident in their chances of succeeding on a statutory incompatibility argument. However, since the Court of Appeal decision in Lancashire, Landowners have been left with uncertainty as to whether they will still be able to rely on an argument of statutory incompatibility, the courts now seeming less willing to allow a public body to rely upon its statutory powers, unless they are specific to the land in question and that registration of the land would be a clear impediment of these. Hopefully the impending decision of the Supreme Court when considering the appeal in the Lancashire case will provide Landowners with some clarity going forward.
For more information on Town and Village Greens, get in touch with the Property Litigation team on 02922 67 5560, or watch our webinar where we address the complexities around Town and Village Greens.