Clarification on the issue of statutory incompatibility in the context of town & village green applications

A recent case to the Court of Appeal gave welcome guidance as to how wide the issue of Statutory Incompatibility can be applied in relation to the registration of Town and Village Greens.

In the Newhaven Port case, an application for a Town and Village Green was defeated by virtue of the fact that the Port was regulated by a Private Act of Parliament and that the statutory duties of the Harbour Authority to operate, dredge and run a full time harbour facility were said to be incompatible with the registration of the beach as a town and village green.  In essence, the specific provisions of the Harbour Authority's Statute and designation of the land as a Town or Village Green were said to be incompatible and resulted in an irreconcilable clash between different statutory regimes.  There have been 2 recent town and village green applications which had sought to be frustrated on the grounds that registration of the land as a town and village green should be frustrated by a similar statutory incompatibility. 

The recent judgment of the Court of Appeal has led to the view that such a defence to a claim to a town and village green is limited to quite specific circumstances. 

The first case in the Lancashire area related to a case involving land held as an education authority and the County Council was seeking to advance an argument that as the land was held as an education authority, the registration of a town and village green would frustrate the County Council's wider educational duties to provide educational facilities for its residents. 

The second case in Leatherhead related to an area of woodland that was held by the Healthcare Trust, ostensibly for healthcare purposes but the land was used as a woodland with paths and walking trials through it.  Again, an argument was advance that as it was held for healthcare purposes and to permit the registration of a town and village green would result in a statutory incompatibility arising as it would prevent the use of the land for healthcare purposes. 

The Judgment of the Court where the two cases were heard at the same time was to the effect that in order for an issue of statutory incompatibility to arise, there has to be specific statutory duties that are prevented or hindered by the registration of a town and village green and not the general holding of land for a statutory purpose. 

It contrasted the situation at Newhaven where a Harbour Authority could have been severely impeded if the Harbour Authority had been prevented from carrying out its specific statutory duties to dredge the harbour, maintain the habour and provide safe moorings against the position of a local authority or health authority merely holding land for their statutory purposes. 

Therefore the guidance from the case is useful, if the doctrine of statutory incompatibility is to be raised, then the person seeking to rely on it has to demonstrate that the use of the land is required in a specific way, or to carry out particular activities. 

In terms of perhaps a more parallel example, one could see a statutory water company - who perhaps were maintaining an artificial water way or other infrastructure through its land, may be able to raise specific grounds of statutory incompatibility on the grounds that failure for it to be able to maintain the land and carry out emergency works would be in clear contravention of its powers to provide a safe and adequate supply of water to its customers.

The case has provided welcome clarification on this emerging issue.