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We have expressed deep sympathy for our members, Janine Bebbington and the Moorside Fields Community Group in Lancaster, following the Supreme Court judgment(1) on 11 December rejecting the registration of the fields as a village green. See our summary of the judgment here.
This will have a huge impact on the ability of local communities to protect the land they have enjoyed for recreation, by registering it as a town or village green.
Under the Commons Act 2006 land can be registered as a green where it has been used for informal recreation for at least 20 years by local people, without challenge or permission. Once registered it is protected from development.
The campaigners won their case for registration in the High Court and the Court of the Appeal, but the judgment today, by a majority of three to two Law Lords, reversed those decisions and will lead to the quashing of the village green registration which protected 13 hectares at Moorside Fields.
The community has fought a decade-long campaign to save the land that local people have used for more than 50 years. They satisfied the necessary tests to have the land registered as a green following a public inquiry in 2015, but the Supreme Court ruled in the same year, on a green application at Newhaven in East Sussex, that the statutory use of land could be incompatible with the recreational use by local people and thus it did not qualify for registration.
The issue in the latest judgment was the circumstances in which statutory incompatibility would defeat an application for a green where the land is held by a public authority for statutory purposes.
Moorside Fields are owned by Lancashire County Council (LCC) which objected to the green application on the basis that the land was acquired and held for education purposes under LCC’s statutory powers as an education authority. A second case, heard jointly with Moorside Fields, concerned 2.9 hectares at Leach Grove Wood at Leatherhead in Surrey, which is owned by NHS Property services Ltd. Timothy Jones had applied to register this land as a green with Surrey County Council.
The Supreme Court allowed both appeals. Lord Carnwath and Lord Sales gave the majority judgment, with which Lady Black agreed. Lady Arden gave a partly dissenting judgment and Lord Wilson gave a dissenting judgment.
The central issue in both cases was the interpretation and application of the statutory incompatibility ground identified in the Supreme Court in the Newhaven case. Applying the Newhaven judgment to the greens in Lancashire and Surrey, the judges ruled by a majority that where land is held for a purpose which is incompatible with its use as a green (even if it is not being used for that purpose), the public cannot acquire the necessary rights for it to be registered as a green.
Says Nicola Hodgson, our case officer: ‘This is a deeply worrying decision as it puts at risk countless publicly-owned green spaces which local people have long enjoyed, but which, unknown to them, are held for purposes which are incompatible with recreational use. We urgently need a change in the law to ensure our precious green spaces are protected.’
Adds Janine Bebbington of the Moorside Fields Community Group: ‘This is a very disappointing result not only for our campaigners, but also for other community groups who may be applying for land to be registered as a green. It is tragic to end with this judgment, after winning at a public inquiry and in the High Court and Court of Appeal, especially when we have consistently proved that we satisfied all the criteria set out in greens legislation.
‘We explained how we played on and loved Moorside Fields for the last 50 years or so. Members of our community told their stories with great dignity and I am hugely proud of the positive way in which we have conducted ourselves over such a long period of time.
‘I am also grateful to the people who have supported our efforts—to other community groups, the Open Spaces Society and Harrison Grant Solicitors.
‘It is a consolation that the advice and support that we have given other groups nationally have fed into their greens victories and that our work has not been completely in vain. This process has taken ten years during which time local authorities have been disposing of assets on a massive scale to try to balance their diminishing budgets.
‘I fear that Moorside Fields will now be developed or sold to fund new schools elsewhere. We are sad for the people of South Lancaster who in time will lose one of the last bits of open space available to them; and we are sad that England will be less green and pleasant as a result of this judgment’.
1 The case is (1) R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs and another; (2) R (on the application of NHS Property Services Ltd v Surrey County Council and another. The judgment and press summary can be found here. The judges were Lord Justice Wilson, Lord Justice Carnwath and Lady Justice Black, Lady Justice Arden and Lord Justice Sales.