Will Supreme Court decision lead to challenges to TVG registrations?

The Supreme Court has allowed an appeal in respect of two town or village green (TVG) cases, confirming that land held for "good public purposes" should not be "stymied" by registration as a TVG.

When can land be registered as a TVG?

Under The Commons Act 2006, any person can apply for land to be registered as a TVG where a significant number of 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.

Is the position different if the land is held for a statutory purpose?

In R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council and another [2015], the Supreme Court decided that land could not be registered as a TVG where it is held by a public body for specific statutory purposes which are incompatible with it being a TVG. That case concerned a working harbour. The Supreme Court concluded that there was "an incompatibility between the 2006 Act and the statutory regime which confers harbour powers on NPP to operate a working harbour…" If the beach was designated as a TVG, it would prevent the harbour authority from performing its statutory duties. Therefore, there was a clear statutory incompatibility and the beach should not be registered as a TVG.

In 2016, the Court of Appeal considered the joint appeal of the 2016 cases of Lancashire County Council v Secretary of State for Environment Food and Rural Affairs and R (on the application of NHS Property Services Ltd) v Surrey County Council. The Lancashire County Council v Secretary of State for Environment Food and Rural Affairs concerned land held by a local education authority, whereas R (on the application of NHS Property Services Ltd) v Surrey County Council concerned land held for the statutory purpose of the NHS.

Lord Justice Lindblom, in giving judgment in the Court of Appeal, differentiated between a specific statutory function and a general statutory function.

In the Newhaven case, if the land had been registered as a TVG, a defined statutory purpose, in relation to that particular land, would have been frustrated. The Court of Appeal decided that this was not the case in relation to either the land being held for educational purposes in the Lancashire case, or the land being held for the NHS in the Surrey case. Both landowners would be able to continue to carry out their statutory functions if the land were designated as a TVG. There was no need for the particular land that was the subject of the TVG applications for the continuation of the statutory functions. Carrying out these statutory obligations may be rendered more difficult if the land were registered as a TVG, but they would not be prevented. Therefore, there was no statutory incompatibility to prevent registration as a TVG.

What did the Supreme Court decide?

The Supreme Court allowed the appeal, confirming that neither the school land nor the hospital grounds should be registered as a TVG. Particular attention was paid to the statutory safeguarding obligations towards primary school pupils, which could not be met if the land, part of which was being used as a school playing field, were registered as a TVG.

Lady Arden (partly dissenting) thought that the test that should be applied was one of reasonable foreseeability, ie "when asking whether there is incompatibility between registration of land as a TVG and the statutory powers of a public authority in relation to the same land where the relevant use that the public authority might make of the land under those powers is a potential future use which has not yet started." However, this approach was rejected by the majority as being unclear.

In giving the judgment of the majority, Lord Carnwath and Lord Sales (with whom Lady Black agreed) said that "It would be a strong thing to find that Parliament intended to allow use of land held by a public authority for good public purposes defined in statute to be stymied by the operation of a subsequent general statute such as the 2006 Act."

What should public bodies do?

Public bodies should still take action to ensure that the public is not able to use the land, as of right, for lawful sports and pastimes. This may include the construction of signs and fencing. Alternatively, express permission could be given to the use of the land.

In addition, where their land has been registered as a TVG, they should take advice – it may be that the Supreme Court’s decision could lead to that registration being removed.

TLT has extensive experience in TVGs. If land is registered as a TVG, it is effectively untouchable. The land value is reduced and the purposes for which it can be used are severely restricted. It is a criminal offence to damage the green, or interrupt the use and enjoyment of it as a place for exercise and recreation. If you own land that you are not protecting from use by the public, get in touch with us.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.