​R (on the application of Barkas) v North Yorkshire County Council

Abstract

Commons – Registration. The Supreme Court considered the issue of whether land in Whitby should be registered as a town or village green under s 15 of the Commons Act 2006. At first instance, and on appeal, it was held that the land should not be registered. The appellant appealed to the Supreme Court. The Court held that, since members of the public had been entitled to go onto and use the land, provided that they used it for the stipulated purpose in s 12(1) of the 1985 Act, namely for recreation, and that they did so in a lawful manner, the appeal would be dismissed. Further, the court considered the case of R (on the application of Beresford) v Sunderland City Council  [2004] 1 All ER 160, and held that it was flawed and could no longer be relied upon.

Summary

Section 15 of the Commons Act 2006 provides, so far as material: ‘(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies. (2) This subsection applies where— (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and (b) they continue to do so at the time of the application.’

The judgment is available at: [2014] UKSC 31

The proceedings concerned a playing field (the field) in Whitby, North Yorkshire. The field was originally part of a larger piece of land, which was developed for housing. The field was retained as ‘recreation grounds’ and not developed, pursuant to s 80(1) of the Housing Act 1936. The 1936 Act was superseded by the Housing Act 1985. The field remained in use, and kept the appearance of a municipal recreation ground. In October 2007, the Neighbourhood Council applied to register the field as a town or village green under s 15 of the Commons Act 2006. The defendant local authority (the authority) carried out an inquiry. The finding of the inquiry was that although a significant number of local people had indulged in lawful sports and pastimes on the field for a period of at least 20 years, their use had not been ‘as of right’ as per s 15(2)(a) of the 2006 Act. The application was rejected. The appellant, who was a member of the Neighbourhood Council, applied for judicial review of the decision (see [2011] EWHC 3653 (Admin)), and from there to the Court of Appeal. She appealed to the Supreme Court.

The issues for decision were: first, where land was provided and maintained by a local authority pursuant to s 12(1) of the Housing Act 1985 or its statutory predecessors, whether the use of that land by the public for recreational purposes was ‘as of right’ within the meaning of s 15(2)(a) of the Commons Act 2006. The authority submitted that it had 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, members of the public had always had the statutory right to use the field for recreational purposes, and, 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’. Members of the public had been using the field for recreational purposes lawfully or by licence, and the 20-year period referred to in s 15(2) of the 2006 Act had not even started to run – and indeed it could not do so unless and until the Council lawfully ceased to hold the Field under section 12(1) of the 1985 Act. 

In the course of argument, the claimant challenged the reasoning in the case of R (Beresford) v Sunderland City Council  [2004] 1 AC 889 (Beresford). Beresford concerned judicial review proceedings of a decision of a county council, as registration authority, not to register land as a village green. It involved land that had been acquired for no particular purpose and had never been appropriated for public recreational use. At first instance and in the Court of Appeal, the city council successfully contended that mowing grass or erecting benches could justify the implying of a licence by which the public could use the land. That verdict was reversed by the House of Lords. Consideration was given to, first, the meaning of ‘as of right’ as used in Beresford and, secondly, the decision in Beresford in relation to the effect of the 1981 Act.

The appeal would be dismissed.

(1) The term ‘as of right’, when properly construed, meant not that land had been used by permission of the landowner, but used without permission as if such permission had existed. It was, therefore, the antithesis of the expression ‘by right’. 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 they used the land ‘by right’ and not as trespassers, so that no question of user ‘as of right’ could arise. The question of whether use was ‘as of right’ had to be judged by how the matter would have appeared to the owner of the land, a question that had to be assessed objectively. Where the owner of the land was a local, or other public, authority which had lawfully allocated the land for public use (whether for a limited or indefinite period), 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 had been using the land ‘as of right’ simply because the authority had not objected to their using the land. It seemed very unlikely, in such a case, that the legislature had intended that land would become a village green after the public had used it for twenty years. 

The position was 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 (see [21], [24] of the judgment).

In the instant case, it was plain that a reasonable local authority in the position of the authority 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 those activities, given that the field was being held and maintained by the authority for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors. Although the instant case did not involve the grant of a right in private law, but instead involved a right principally enforceable by public rather than private law proceedings, and the right alleged by the authority was not precisely analogous to a public or private right of way, that did not make any difference in terms of legal principle or public policy. The point was that members of the public were entitled to go onto and use the land, provided that they used it for the stipulated purpose in s 12(1) of the 1985 Act, namely for recreation, and that they did so in a lawful manner (see [21], [22] of the judgment).

The appeal would fail (see [30], [86] of the judgment).

Public Works Comrs v Angus & Co, Dalton v Angus & Co [1881-5] All ER Rep 1 applied; R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 3 All ER 385 applied; Lawrence v Fen Tigers Ltd [2014] All ER (D) 245 (Feb) applied; Lambeth Overseers v LCC [1897] AC 625 considered; Hall v Beckenham Corpn [1949] 1 All ER 423 considered; Mills v Silver [1991] 1 All ER 449 considered; R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] 2 All ER 613 considered.

(2) In relation to the meaning of ‘as of right’ in Beresford , Beresford did not justify the argument that there could be cases where a person used land with the permission of the landowner, but was nonetheless using the land ‘as of right’ rather than ‘by right’. In the circumstances, paras [43]-[50] of Beresford could not be relied upon, as they included passages that were simply wrong in principle and contrary to well-established authority, as well as being inconsistent with other reasoned opinions (see [36], [38] of the judgment).

(3) Regarding the decision in Beresford  in relation to the effect of the 1981 act, Beresford could, and ought to be, distinguished on the facts of the instant case. The court was quite satisfied that the decision and reasoning inBeresford ought no longer to be relied upon, rather than leaving the law in a state of uncertainty, and requiring money and time to be further expended (see [47]-[49] of the judgment).

The decision and reasoning of the House of Lords in Beresford would no longer be relied upon (see [49], [86] of the judgment).

R (on the application of Beresford) v Sunderland City Council [2004] 1 All ER 160 overruled; R (on the application of Beresford) v City of Sunderland [2000] All ER (D) 1811 approved.

Decision of Court of Appeal [2012] EWCA Civ 1373 affirmed.

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