Shortly before Christmas, the UK's highest court, the Supreme Court, ruled that registrations of town and village greens (TVG) on publicly-owned land should not be permitted where they are incompatible with the statutory purposes for which that land is held. This covers any land held by a public body or those with a statutory function, like a local authority or health trust, to fulfill their legal duties. Once land is registered as a TVG by a local authority, it enjoys protection from any development that is incompatible with its TVG status as a place for members of the public to enjoy recreation and exercise.
The landmark judgment concerned two TVG registration applications in Surrey on NHS Property Services land and one in Lancashire on a site owned by the county council. Supreme Court judges Lord Carnwath and Lord Sales overturned a Court of Appeal ruling that backed the registration applications after they were resisted by the landowners. In a majority judgment, the judges ruled: "The issue of incompatibility has to be decided by reference to the statutory regime which is applicable and the statutory purposes for which the land is held, not by reference to how the land happens to be being used at any particular point in time."
The wide-ranging ruling could in effect rule out future registrations on most land owned by public authorities, according to Simon Kelly, an associate at law firm Richard Buxton Environmental & Public Law, who represented one of the registration applicants. "The public authority will simply have to demonstrate that it owns the land to fulfil a particular statutory purpose and an application for a TVG on it would be struck out," he said.
"When the TVG application was made on the NHS land, [the organisation] was not even aware they owned it," Kelly points out. "This latest judgment means that the application has been rejected simply because the site is in NHS ownership, even though it was not using it for any purpose and it clearly had no plans to do anything with it in the future," he explains. Planning barrister Ashley Bowes of Cornerstone Barristers who represented one of the applicants, pointed out that two out of the five Supreme Court judges "produced dissenting judgements" and suggested there could be scope to bring the issue back to the Supreme Court.
"The judgment could affect land already registered as a TVG," said planning barrister Jonathan Clay, also of Cornerstone Barristers, who acted on behalf of NHS Property Services. He suggested that public authorities could seek a review of registrations which have already been made. "There is scope in the 2006 Commons Act for town and village greens to be deregistered ," he said. "I know agencies which are actively looking at it following this judgment because they consider that the use as a village or town green on the land is incompatible with their statutory purpose."
Elizabeth Nuttall, senior associate at law firm Pinsent Masons, said the judgment could reduce the risks for local authorities wanting to sell or develop their land. "There would no longer be the risk of a TVG application, getting in the way of the sale," she said. Nuttall suggested that councils should review any land registered as a TVG, adding: "There may be scope for it to be deregistered."
"Public agencies own some land which has not been acquired for a statutory purpose, which could still be subject to registration as a town or village green," said Douglas Edwards QC of Francis Taylor Building who represented Lancashire County Council. He said councils will have
to produce evidence that a site has been acquired for a particular purpose to resist a registration application for TVG.
Unsurprisingly, conservation bodies have reacted with dismay to the ruling. Nicola Hodgson, case officer at the Open Spaces Society, said: "This is a deeply worrying decision as it puts at risk countless publicly-owned green spaces which local people have long enjoyed, but which, unknown to them, are held for purposes which are incompatible with recreational use." The society said in a statement that the judgment will "further restrict the ability of local people to protect land by registering it as a TVG".
Hodgson estimated that there are more than 4,000 registered TVGs across England. Bowes estimated that about half of land registered as a town or village green was in public ownership.
Hodgson said: "We are now looking at encouraging district and parish councils to register voluntarily their land as TVGs. Communities might also consider applying to have pieces of land registered as assets of community value [under the Localism Act] to secure them for community benefit," she said. "There is scope for land to be used for public benefit without securing registration as a TVG ," added Polly Reynolds, a partner at law firm Temple Bright.