R (on the application of Lancashire CC) v SSEFRA & Anor [2019] UKSC 58

The Supreme Court considered whether land held by public authorities for statutory education and health purposes could be registered as town or village greens. The majority held that statutory incompatibility defeated registration in both cases, extending the Newhaven principle.

Facts

Two conjoined appeals concerned applications to register land as town or village greens (TVGs) under section 15 of the Commons Act 2006. In the Lancashire case, Ms Janine Bebbington applied to register approximately 13 hectares known as Moorside Fields, adjacent to Moorside Primary School, as a TVG. The land (divided into Areas A-E) was owned by Lancashire County Council (LCC), which acted as both education authority and registration authority. A planning inspector determined that Areas A to D should be registered. In the Surrey case, an application was made to register Leach Grove Wood, adjoining Leatherhead Hospital, owned by NHS Property Services Ltd. Surrey County Council, as registration authority, registered the land despite its non-statutory inspector recommending refusal on a different ground.

Issues

The principal issue was the circumstances in which the concept of ‘statutory incompatibility’, as recognised in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] AC 1547, will defeat a TVG application where land is held by a public authority for statutory purposes. Specifically, whether the Newhaven principle applies to land held under general statutes (relating to education and health services) rather than specific statutes applying to identified land. A subsidiary issue in the Lancashire case was whether the land was held for educational purposes. In Surrey, a late application was made to argue that public use was by implied permission.

Arguments

Appellants

Mr Edwards QC (for LCC) argued that Newhaven applied generally to land held by statutory authorities for statutory purposes, regardless of whether those purposes were tied to specific identified land. Registration would be inconsistent with the authority’s statutory educational functions, including safeguarding duties and the need for future school provision. Mr Laurence QC (for NHS Property Services) made similar submissions, supported by Gilbart J’s reasoning that there was no feasible health-related use consistent with TVG registration.

Respondents

The respondents argued that Newhaven’s reasoning was more narrowly confined, depending on identifying a conflict between a specific statutory regime governing identified land and the general TVG regime. They relied on the highly specific statutory provisions governing the Newhaven land and the reference to the generalia specialibus non derogant rule.

Judgment

The Supreme Court allowed both appeals by a majority (Lord Carnwath, Lord Sales and Lady Black; Lady Arden partly dissenting; Lord Wilson dissenting).

Majority reasoning (Lord Carnwath and Lord Sales)

The majority held that the test in Newhaven at paragraph 93 was expressed in general terms: whether land had been acquired for statutory purposes (compulsorily or by agreement) and was for the time being so held. The test was not limited to statutory undertakers or to land governed by statutes identifying specific parcels of land. The question of incompatibility was one of statutory construction, to be determined by comparing the statutory purpose for which the land is held with the rights claimed pursuant to the 2006 Act, not by reference to actual or proposed use.

On the preliminary issue in Lancashire regarding whether land was held for educational purposes, the majority held that the inspector’s conclusion was irrational. The reference to section 87(3) of the Education Act 1944 on the 1948 conveyance was unequivocal evidence that Areas A and B were acquired for educational purposes, and the evidence was sufficient on the balance of probabilities for Areas C and D.

On the implied permission argument in Surrey, permission to raise this new argument was refused. The majority confirmed that passive acquiescence, even by a statutory authority, was insufficient to imply permission; an overt act by the landowner was required.

Applying Newhaven, the majority held there was statutory incompatibility in both cases. For LCC, registration would conflict with safeguarding duties regarding Area B as a school playing field, and more generally with use of all Areas for education purposes including future construction. For NHS Property Services, there was no feasible health-related use compatible with TVG registration.

Lady Arden (partly dissenting)

Lady Arden considered that incompatibility required a factual assessment as well as a legal one. It must be shown either that the land was being used pursuant to the statutory powers or that it was reasonably foreseeable it would be so used, adopting the test from British Transport Commission v Westmorland County Council [1958] AC 126. She would have allowed the Lancashire appeal only in relation to Areas A and B, and remitted the Surrey matter for a factual determination.

Lord Wilson (dissenting)

Lord Wilson would have dismissed both appeals. He considered that Newhaven concerned statutes imposing specific duties relating to a particular identified harbour, which was materially different from general powers to hold land for education or health purposes. Following The King v The Inhabitants of Leake (1833) and the Westmorland case, incompatibility should be assessed on a practical, not theoretical, basis. Neither authority had established that public use would be incompatible with its use pursuant to statutory powers.

Implications

The decision significantly extends the scope of the statutory incompatibility defence beyond the specific statutory context of Newhaven. Public authorities holding land under general statutory powers for defined statutory purposes (such as education or health) will be able to resist TVG registration where registration would be incompatible with those purposes, even absent current use of the land for those purposes or concrete proposals for future use.

The decision is important for local authorities, NHS bodies and other public authorities holding land that may currently appear underused, but which is held pursuant to statutory powers. It limits the reach of section 15 of the 2006 Act in respect of publicly-held land and protects the ability of public authorities to put land acquired for statutory purposes to such use in the future without that potential being defeated by TVG registration.

The majority recognised that the 2006 Act contains no mechanism allowing a public authority to buy out TVG rights over its own land, reinforcing the inference that Parliament did not intend general TVG provisions to override specific statutory purposes. The decision also reflects the 2013 amendments (via the Growth and Infrastructure Act 2013) which restored some balance between landowners and TVG applicants.

Limits of the decision include that it does not address the scope of the ‘equivalence’ principle or how landowners may continue to use registered greens for existing purposes – those issues awaited further consideration in TW Logistics. The strong dissents by Lady Arden and Lord Wilson indicate continuing uncertainty about the correct interpretation of Newhaven, particularly the extent to which factual assessment of actual or foreseeable use is required.

Verdict: The Supreme Court allowed both appeals by a majority. The registration of the Lancashire land (Areas A-D) as a town or village green was set aside, and in the Surrey case the quashing of the registration of Leach Grove Wood was upheld. In both cases, statutory incompatibility between the statutory purposes for which the land was held (educational purposes in Lancashire; health purposes in Surrey) and registration under section 15 of the Commons Act 2006 prevented registration.

Source: Lancashire CC, R (on the application of) v SSEFRA & Anor [2019] UKSC 58