Events

Breakfast Briefing - Court of Appeal Decision Clarifying Scope of Principle of "Statutory Incompatibility"

In an important conjoined appeal (Lancashire CC v SSEFRA and Bebbington and Jones v NHS Property Services Ltd [2018] EWCA Civ 721 – judgment here) the Court of Appeal has clarified the scope of the principle of “statutory incompatibility”, derived from R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7.

On that principal issue, Lindblom LJ (with whom Jackson and Thirlwall LJJ agreed) upheld the decision of Ouseley J in the Lancashire case that a school field could be registered notwithstanding that it was held for statutory purposes under, among other things, s.8 of the Education Act 1944 and s.14 of the Education Act 1996.  He held that those provisions were “general in their character and content” and did not give rise to the “inevitable clash” identified by the Supreme Court in Newhaven.  Lindblom LJ also observed that the principle “must … be exercised with care, and only when the need to do so truly arises” (para.36).  The corollary was that the Court allowed the appeal in the NHS case, finding – in disagreement with Gilbart J – that the relevant statutory provisions on health relied upon were also insufficiently specific in nature.

Lindblom LJ rejected the other issues of appeal or cross appeal in both cases, finding in particular:

• That the inspector in the Lancashire case was entitled to conclude that the County Council had not demonstrated that it held the land for educational purposes;
• That the effect of a boundary change in the locality relied upon in the 20 year period did not preclude reliance upon that locality for the purposes of registration;
• That there was no requirement to show a "spread" of users throughout the locality;' and
• That no common law duty to give reasons applied in the NHS case, where Surrey County Council had disagreed with its inspector's recommendation, that duty had been satisfied by the record in the minutes.

Douglas Edwards QC, Jeremy Pike (who appeared for Lancashire County Council) and Ned Westaway (who appeared for Janine Bebbington) will discuss the implications of this decision at the Briefing on 2 May 2018.

 Registration over coffee and croissants from 8.00am.  Briefing from 8.30-9.30am.