Supreme Court rejects call to register recreation ground as village green

The Supreme Court has upheld a county council’s refusal to register a recreation ground – which had been provided for that purpose by another local authority – as a village green.

In the case of R (on the application of Barkas) v North Yorkshire County Council and another [2014] UKSC 31 the appellant applied to register a two-hectare playing field at Helredale Road in Whitby as a town or village green under s. 15 of the Commons Act 2006.

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

The UDC maintained the field as “recreation grounds” pursuant to s. 80(1) of the Housing Act 1936, now section 12(1) of the Housing Act 1985. Scarborough maintained the field for the relevant 20-year period from 1987 to 2007, mowing the grass and marking out the football pitch, but then announced plans to build on the site.

Under s. 15 of the 2006 Act, an application can be made to register land as a town or village green where a significant number of inhabitants of the locality have “indulged as of right in lawful sports and pastimes on the land” for at least 20 years.

An inquiry commissioned by North Yorkshire County Council – the commons registration authority – concluded that, although a significant number of the inhabitants had indulged in lawful sports and pastimes on the land for at least 20 years, their use had not been “as of right”. The authority accepted a recommendation of Vivian Chapman QC, who conducted the inquiry, and rejected the application.

A member of the neighbourhood council applied for judicial review. However, she lost in both the High Court and the Court of Appeal.

The Supreme Court has now also unanimously dismissed her appeal, with Lord Neuberger giving the main judgment and Lord Carnwath giving a full supporting judgment.

The court ruled that so long as land was held under a provision such as s. 12(1) of the 1985 Act, members of the public had a statutory right to use the land for recreational purposes, and therefore use the land “by right” rather than “as of right”.

Lord Neuberger said: “If a person uses privately owned land ‘of right’ or ‘by right’, the use will have been permitted by the landowner – hence the the use is rightful. However, if the use of such land is ‘as of right’, it is without the permission of the landowner, and therefore is not ‘of right’ or ‘by right’, but is actually carried on as if it were by right – hence ‘as of right’. The significance of the little word ‘as’ is therefore crucial, and renders the expression ‘as of right’ effectively the antithesis of ‘of right’ or ‘by right’.”

The President of the Supreme Court went on to highlight Lord Hoffman’s explanation in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] that a combination of statutory and common law had resulted in the de facto enjoyment of land having to have been for 20 years “not by force, nor stealth, nor the licence of the owner” before prescriptive rights were acquired.

Lord Hoffman had said that these three vitiating factors set out the circumstances in which it would have been reasonable to expect the owner to resist the exercise of the right.

In the current case, Scarborough argued that it acquired and had always held the field pursuant to s. 12(1) of the 1985 Act and its statutory predecessors, so the field had been held for public recreational purposes. Consequently, it submitted, members of the public had always had the statutory right to use the field for recreational purposes.

Accordingly, there could be no question of any ‘inhabitants of the locality’ having indulged in ‘lawful sports and pastimes’ ‘as of right’, as they had done so ‘of right’ or ‘by right’, Scarborough claimed.

Lord Neuberger said this argument was “as compelling as it was simple”. He continued: “So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of use ‘as of right’ can arise.”

The judge added: “In the present case, it is, I think, plain that a reasonable local authority in the position of the council would have regarded the presence of members of the public on the field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the field was being held and maintained by the council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors.”

Lord Neuberger said he agreed with Lord Carnwath that where the owner of the land was a local, or other public, authority which had lawfully allocated the land for public use, it was impossible to see how, “at least in the absence of unusual additional facts”, it could be appropriate to infer that members of the public have been using the land ‘as of right’ simply because the authority had not objected to their using the land.

“It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years,” he concluded.

“It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights.”

Lord Neuberger said the Supreme Court should also “grasp the nettle” and say that the decision in Beresford v Sunderland City Council [2004] in which the House of Lords held that the public’s use for more than 20 years of land maintained by the local authority with that authority’s knowledge was ‘as of right’, should no longer be relied on.

Agreeing with Lord Carnwath’s fuller reasoning on why this decision should no longer be relied upon, Lord Neuberger said: “It seems to me clear on the facts….that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was ‘as of right’: it was ‘by right’.”

Sponsored Editorial

Need a transcript or recording?

Are you a Paralegal or a Legal Officer? Have you been asked to obtain a transcript of a recording for use as evidential material? Wondering where to start? Don’t worry – we speak to people in your position every single day – and we’ll be happy to help you too. Whether or not you choose to use our…