Supreme Court set to hear latest in series of village green cases

The latest in a series of village green cases to reach the Supreme Court will be heard next week by a five-judge panel led by Lord Neuberger.

The central issue in R (Barkas) v North Yorkshire County Council is whether members of the public using a recreation ground, which has been provided for that purpose by a local authority in the exercise of its statutory powers, do so "by right" or "as of right".

The appellant applied to register a playing field at Helredale Road in Whitby as a town/village green under s. 15(2) of the Commons Act 2006 as a significant number of local inhabitants had indulged as of right in lawful sports/pastimes on the land for at least 20 years.

The land had been acquired in 1951 by Whitby Urban District Council – the predecessor of Scarborough Borough Council – as a site for the erection of council houses.

Section 80(1) of the Housing Act 1936 (consolidated in s. 12(1) of the Housing Act 1985) gave local authorities the power to provide and maintain recreational grounds with the consent of the Minister.

The UDC laid out and maintained the field as a recreation ground under s. 80(1). Scarborough maintained the field for the relevant 20-year period from 1987 to 2007, but then announced plans to build on the site.

The appellant’s application was rejected by North Yorkshire County Council based on the Inspector’s – Vivian Chapman QC’s – conclusion (followed by the High Court and Court of Appeal) that, although the use of the land met all the requirements in s. 15(2), the use for recreational purposes was "by right" and not "as of right".

Reliance was placed on obiter in R (Beresford) v Sunderland CC [2004], where the House of Lords expressed reservations about treating recreational users as trespassers acting as of right not only where there was an express statutory trust for the recreational land, but where "the land had been appropriated for the purposes of public recreation."

While the local authority was under no obligation to make the land recreational, the enabling enactment expressly gave it power, with ministerial consent, to provide a recreation ground in connection with housing, and was therefore land "appropriated for the purpose of public recreation." It was also very difficult to regard members of public harmlessly using such land as trespassers.

The appellant is expected to argue before the Supreme Court that the Court of Appeal misconstrued Beresford, and that there is no express statutory wording (as in other similar statutes) to confer a right to prevent the use being as of right. The recreational use of the land under the Housing Acts is entirely a matter of discretion.

The case will be heard over one and a half days by a panel comprising Lord Neuberger, Lord Kerr, Lord Reed, Lord Carnwath and Lord Hughes.

Last month the Supreme Court handed down a major ruling on applications to rectify the register of town and village greens, lapses of time and the question of whether there would be a serious detriment or prejudice should an application be granted.

The ruling in the conjoined cases of Adamson and others (Respondents) v Paddico (267) Limited (Appellant) and Mrs Gill Taylor (on behalf of the Society for the Protection of Markham and Little Francis) (Appellant) v Betterment Properties (Weymouth) Limited (Respondent) [2014] UKSC 7 concerned the effect of a lapse of time on an application for rectification made under s. 14(b) of the Commons Registration Act 1965.

The Supreme Court held that a lapse of time was not immaterial to the justice of applications for rectification but in both cases there was no evidence before the court to show that significant detriment to others had occurred as a result.

In December 2013 the Supreme Court granted permission to appeal in the case of R (oao Newhaven Port and Properties Ltd.) v East Sussex County Council and Newhaven Town Council.

This yet-to-be-heard case centres on the registration of a beach known as West Beach in Newhaven. An application to register the beach as a village green was made under s. 15(4) of the 2006 Act.

East Sussex granted the application following an inquiry. The port authority – Newhaven Port & Properties – then applied for a judicial review.

A High Court judge, Mr Justice Ouseley, dismissed all of the claimant’s original grounds, but reversed the decision on a single point of law. The judge held that registration of the beach, which was part of the port’s operational land, was subject to the authority’s byelaw-making powers and existing byelaws. As such its registration was incompatible with the statutory powers and the beach was outside the scope of the Commons Act 2006.

The Court of Appeal reversed this decision by a 2 to 1 majority. The capacity of the landowner to grant rights over land claimed as a green was irrelevant to its registration, the court held. It also rejected the port authority’s cross-appeal.

According to Kings Chambers, the Supreme Court granted permission to appeal on three issues:

1. Whether incompatibility with statutory functions is a bar to registration;
2. Whether the use of a tidal beach is presumed to be pursuant to a revocable licence;
3. Whether the existence of byelaws prevents use being as of right.

Stephen Sauvain QC and John Hunter from Kings Chambers, who are acting for East Sussex, said the first and third issues were “of wide importance, given the extent of land held pursuant to statutory functions and subject to byelaws.