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Court quashes TVG status of NHS property

Registration authorities have a duty to consider all objections made to the registration of land as a town or village green (TVG).  Surrey County Council's failure to do this has led to the TVG status of an area of land owned by the NHS being quashed.

In order to be registered as a TVG, a significant number of the inhabitants of any locality, or neighbourhood within a locality, must have indulged,  as of right, in lawful sports and pastimes on the land for a period of at least twenty years.

The land in question had been held for statutory purposes since 1971, when it was appropriated by Surrey County Council for "Education, Health and Social Services".  As the result of various reorganisations, it is now owned by NHS Property Services Limited (NHSPS) for the purposes of the NHS. 

NHSPS objected to the registration on the basis that registration as a TVG would be incompatible with the statutory purposes for which the land was held. The Inspector did not, however, recommend that the application be rejected on this ground. He felt that the applicant had failed to identify a locality, or neighbourhood within a locality, that had indulged in lawful sports and pastimes on the land for twenty years.

The general view was that there had been some procedural irregularity in the council's treatment of the matter:

  • Not only did the council fail to follow the Inspector's recommendation, but it neglected to give reasons for its decision to register the land;
  • No consideration was given to the question of whether registration of the land as a TVG would be incompatible with the statutory purposes for which the land was held;
  • There was evidence of unfairness. The representations of the party applying for registration of the land as a TVG were circulated to the members in hard copy, but those of NHSPS were not. Several members did not receive the emailed copy of NHSPS' representations. The court commented that the decision appeared to be unaffected by this. However, it shows that correct procedures must be followed. Failure to do so could lead to judicial review of the decision.

Duty to give reasons for decision

Whilst the court decided that it was reasonable for the council to find that a neighbourhood could be identified that had indulged in lawful sports and pastimes for the requisite period of time, the council had failed in its duty to give reasons for its decision. The court commented that registration as a TVG permits use by others of property owned by a landowner and restricts his or her ability to develop it. The only route by which registration can be challenged is that of judicial review. This makes the existence of reasons important so that they can be the subject of judicial scrutiny.

Statutory incompatibility

In considering the application, the council, as registration authority, has a duty to consider all objections made at all stages. NHSPS had objected on the ground of statutory incompatibility so the council was obliged to consider this, and give reasons for the conclusions that it reached. It had failed to do so. The court said that "given the failure to address the matter at all, the decision was legally flawed."

The court then concluded that there was statutory incompatibility, saying that the erection of buildings or facilities to provide treatment, or for administration purposes, or car parking, would plainly conflict with recreational use. 

The court's view was that it is not relevant that the land does not currently have hospital buildings on it. The question is not whether the land has been used for the provision of healthcare services, or even whether there are any plans to use it, but only whether there is an incompatibility as a matter of statutory construction.  In these circumstances registration as a TVG would prevent the use of the land for its statutory purposes. Therefore, the inspector's approach to the question was wrong.

What next?

The result was that the registration was quashed and the application will be re-determined by the council. Permission was granted to appeal so it may not be the end of the matter.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions 

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