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Supreme Court to Hear ‘Statutory Incompatibility’ Appeal

Douglas Edwards QC
Jeremy Pike
Ned Westaway

R. (on the application of Lancashire CC) v Secretary of State for Environment, Food and Rural Affairs and Bebbington; R (NHS Property Services Ltd) v Surrey County Council and Jones ([2018] EWCA Civ 721 [2018] 2 P. & C.R. 15)

The Supreme Court (Lady Hale PSC; Lord Carnwath JSC and Lady Arden JSC) has granted permission to appeal against the decisions of the Court of Appeal handed down in March 2018.

In both appeals public authorities owned parcels of land which were the subjects of decisions to register the land as new town or village greens. Both authorities argued that, following the decision of the Supreme Court in the Newhaven litigation, their land could not be registered as a green because to do so would give rise to a so-called ‘statutory incompatibility’ between the rights of local inhabitants to use the land for recreation, and the powers and duties of the authorities to use their land for particular statutory purposes: education purposes in the Lancashire appeal; health service purposes in the NHS appeal.

This appeal provides an important opportunity for the court to clarify the scope of the statutory incompatibility principle which arose in the Newhaven litigation. The Court of Appeal’s reasoning was that in both appeals the statutory powers and duties of the authorities were general in nature and did not require the particular parcels of land in question to be used for any particular purpose, being part of the authorities’ wider landholding. As a consequence, the Court of Appeal held, statutory incompatibility did not arise in relation to the land. 

Douglas Edwards Q.C. and Jeremy Pike appear for Lancashire County Council; Ned Westaway appears for Ms Bebbington, the applicant for registration in the Lancashire appeal.