Whose land is it anyway?

There is a dearth of decided case law surrounding the use of land where there is a lack of knowledge regarding ownership or occupation. Stephen Winterton examines an important High Court decision that highlights the need for local authorities to keep accurate records of the land they own.

In Jonathan Harvey v Plymouth City Council (2009), the High Court considered the liability of a local authority for an accident on an area of land that it did not appreciate it owned.

In April 2003, Harvey and a group of others had been watching friends play rugby. After the game, the friends went to a number of bars and drank a considerable amount of alcohol.

At the end of the night, the friends took a taxi and stopped close to a Tesco supermarket where they intended to buy food. Harvey and two others fled from the taxi, leaving the remaining friend to pay the fare. On leaving the taxi, Harvey and his friends ran onto an area of grassland bounded by trees and shrubs. Whilst running over the land, Harvey tripped over a low chain link fence and fell approximately five and a half metres down a retaining wall onto the supermarket car park, sustaining serious injuries.

In 1985, the local authority had sold land to Tesco for construction of the supermarket. The area of grassland adjoined the supermarket and the local authority also granted Tesco a two-year licence of the grassland as it was envisaged this would also be developed. Tesco constructed the retaining wall between the supermarket car park and the grassland and installed a chain-link fence. The licence expired by effluxion of time, although Tesco continued to cut the grass on the land until 2005. The local authority was unaware that it owned the land until Harvey's accident and, as a consequence, did not inspect or maintain it.

The chain link fence which was close to the boundary with the retaining wall had fallen into disrepair.

Legal arguments

Harvey brought an action alleging that the local authority was in breach of the common duty of care owed to him under Section 2 (1) of the Occupiers' Liability Act 1957.

However, the local authority argued that Harvey was not a lawful visitor or implied licensee under the 1957 Act. Furthermore, if he were deemed a trespasser then the more restricted duties of care under the Occupiers' Liability Act 1984 would be applicable.

The local authority also argued that the owner of land cannot acquiesce in the use of land without knowledge of that use. It was further asserted that, on the basis that it did not know it owned and therefore occupied the land and also had no knowledge of the use to which it was being put, it could not impliedly license such use. In other words, if it did not know what was happening on or with the land then it could not be responsible.

The decision

The court ruled that Harvey was not a trespasser. There was evidence given at the trial that the land has been regularly used by members of the public of all ages for many activities such as dog walking, playing ball games, youths congregating in the evening and so on.

The court accepted that the owner of land cannot acquiesce in the use of land without knowledge. However, in this case the local authority was fully aware that it owned the land before granting the licence to Tesco. In the circumstances, it should have known when the licence came to an end and should also have given consideration to the use to which the land was being put and what, if anything, it needed to do to ensure it was safe. It was felt that the fence had become a tripping hazard particularly as it was so close to the edge of the retaining wall.

Judgment was given in favour of Harvey, although he was held to be 75% contributorily negligent due to his actions in running into a unlit area of land, which he was unfamiliar with, and whilst under the influence of alcohol.

Comment

This case has implications for landowners, particularly local authorities. Although the law relating to occupiers' liability is well developed, there appears to be a dearth of decided case law surrounding the use of land where there is a lack of knowledge regarding ownership or occupation.

It is entirely feasible that there are plots of land scattered throughout the country where, for one reason or another, the owners have forgotten or not appreciated that the land belonged to them.

In these circumstances, landowners could potentially be liable if the land is not inspected or maintained and structures or features upon the land become neglected and potentially dangerous so that they might cause injury to persons who might go onto the land.

Key points for defendants

Local authorities and other land owners should check their records to establish if there are plots of land in their ownership that have become forgotten about or neglected.

If such land exists, then they should take steps to carry out regular inspections to ensure that any features or structures on the land are safely maintained.

Stephen Winterton is an associate director at Barlow Lyde & Gilbert (www.blg.co.uk). He can be contacted on 020 7643 8502 or via This email address is being protected from spambots. You need JavaScript enabled to view it..