R (Lancashire County Council) v (1) Secretary of State for Environment, Food and Rural Affairs (2) Janine Bebbington;
R (NHS Property Services Limited) (1), Surrey County Council (2) v Timothy Jones
 EWCA Civ 721
There were others but the issue common to both appeals was whether the concept of statutory incompatibility defeated an application to register land as a TVG under s15 of the Commons Act 2006.
- The Court of Appeal unanimously dismissed an appeal from the decision of Ouseley J not to quash the registration of land adjoining a primary school in Lancaster as a Town or Village Green (TVG); and
- Allowed an appeal from the decision of Gilbart J to quash the registration of land adjoining Leatherhead Hospital as a TVG.
In the Lancaster case an application was made to Lancaster County Council, as registration authority, for 32 acres of land adjoining a Primary School to be registered as a TVG under s15 of the 2006 Act on the grounds that:
“a significant number of the inhabitants of any locality, or of any neighbourhood within a locality”, have “indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.An inspector appointed under a pilot scheme decided that 4 out of 5 areas should be registered as a TVG. The Council, as owner of the land, claimed judicial review of the decision because registration as a TVG was incompatible with its statutory duty as local education authority. On 27 May 2016 ( EWHC 1238 (Admin)) Ouseley J dismissed the Council’s claim for judicial review.
In the Leatherhead case the defendant supported an application to Surrey County Council to have 7 acres of land adjoining Leatherhead Hospital registered as a TVG under s15 of the 2006 Act. The Council, rejecting an inspector’s recommendation, granted the application but the owner, NHS Property Services Ltd, successfully judicially reviewed the decision before Gilbart J ( EWHC 1715 (Admin)) on the grounds that registration as a TVG was incompatible with the discharge of the owner’s statutory duty as a health care provider.
The issue common to both appeals was how the decision of the Supreme Court in R (Newhaven Port and Properties Limited) v East Sussex County Council  UKSC 7 should be applied to the facts of the two cases.
In the Newhaven case the Supreme Court held that the general provisions of s15 of the 2006 Act should yield to the particular provisions of s49 of the Newhaven Harbour and Ouse Lower Navigation Act 1847, which required the trustees to “maintain and support the said harbour of Newhaven” and s33 of the Harbours, Docks and Piers Clauses Act 1847 which provided that “the harbour, dock and pier shall be open to all persons for the shipping and unshipping of goods.”
At  Lords Neuberger and Hodge said:
“The question of incompatibility is one of statutory construction. It does not depend on the legal theory that underpins the rules of acquisitive prescription. The question is: “does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green?” In our view it does not. Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes.”Decision [on appeal]
In the Lancaster case the Council relied on the Education Acts 1944, 1996 and 2012 and, in particular, the duty imposed on it as local education authority to secure that sufficient schools are available for providing primary and secondary education and that they should be sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education and, by regulations, to ensure that suitable outdoor space must be provided; for physical education to be provided for pupils; and for pupils to be able to play outside.
Ouseley J was not persuaded that the concept of statutory incompatibility was engaged. Some educational functions, e.g. open-air classes and organised recreation, would not be prevented by public rights of access, with appropriate give and take. But the key question for Ouseley J was:
“Can Lancashire County Council carry out its educational functions if the public has the right to use [the registered part of Moorside Fields] for recreational purposes?” and his answer to that was “yes and it would still be yes, even if it could make no educational use of the land at all.”In the Newhaven case the answer to the equivalent question was no, because the particular piece of land had to be maintained at all times as a working harbour. The Court of Appeal upheld Ouseley J’s approach. At  Lindblom LJ said:
“There was no statutory duty to provide a school on the land, or to carry out any particular educational activity on it. There were no proposals to develop it for a new school. The fact that the county council, as owner of the land, had statutory powers to develop it was not sufficient to create a “statutory incompatibility” … Nor was the fact of its having been acquired and held for such purposes – if, indeed, it was. The relevant statutory purposes were capable of fulfilment through the county council’s ownership, development and management of its property assets as a local education authority without recourse to the land in question – notwithstanding that, on its own contention, it had owned that land for “educational purposes” for many years. The registration of the land as a town or village green would not be at odds with those statutory purposes.”In the Leatherhead case the statutory functions relied on by NHS Property Services Ltd and the purposes underlying them were equally general in character and content and included the duty to arrange for the provision of hospital accommodation, as well as various other healthcare services and facilities, under s3(1) of the National Health Service Act 2006.
Gilbart J considered himself to be taking the same approach as Ouseley J had done in the Lancaster case in accepting that statutory incompatibility was established. The Court of Appeal disagreed, Lindblom LJ saying at :
“As in the Lancaster case, therefore, the circumstances did not correspond to those of Newhaven Port and Properties. The land was not being used for any “defined statutory purposes” with which registration would be incompatible. No statutory purpose relating specifically to this particular land would be frustrated. The ownership of the land by NHS Property Services, and the existence of statutory powers that could be used for the purposes of developing the land in the future, was not enough to create a “statutory incompatibility”. The clinical commissioning group would still be able to carry out its statutory functions in the provision of hospital and other accommodation and the various services and facilities within the scope of its statutory responsibilities if the public had the right to use the land at Leach Grove Wood for recreational purposes, even if the land itself could not then be put to use for the purposes of any of the relevant statutory functions. None of those general statutory functions were required to be performed on this land.”