Application for registration of land as town or village green – Application claiming land used for recreational activities for over 20 years “as of right” – Defendants finding use not “as of right” upon ground of implied licence – Application refused – Application for judicial review – Whether implied permission to use land sufficient to defeat claim of use as of right – Section 22 of Commons Registration Act 1965 – Application dismissed – Appeal dismissed
In 1998 the planning authority for Sunderland granted permission for the erection of a college of further education on a site incorporating land known as the Sports Arena, which was owned by Sunderland City Council (the defendants).
In November 1999 the claimant together with three other local residents, applied to the defendants to have the arena registered as a town or village green, pursuant to section 13 of the Commons Registration Act 1965. In support of the application, the claimant contended that the inhabitants of Sunderland had indulged in recreational activities at the arena, “as of right”, for more than 20 years, and that the land thus fell within the definition of “town or village green” contained in section 22 of the Act.
The defendant licensing committee decided that although the inhabitants had used the arena for sports or recreational facilities for more than 20 years, they had not done so “as of right”, but with the permission or licence of the landowners. It also found that although there was no express licence, there was evidence of an implied licence, which was sufficient to defeat the claim that there had been use “as of right”. They therefore refused to amend the register to include the arena as a town or village green.
The claimant sought judicial review of the committee’s decision, principally upon the ground that an implied licence was not sufficient to defeat a claim that use was “as of right”. It was submitted that an oral or written express licence from the landowner was required. Dismissing that application, the judge held that a licence or permission inferred from the circumstances of the case could be sufficient to defeat a claim that use was “as of right”. In a case in which no express permission existed, the decision maker had to consider whether a reasonable person would have appreciated whether the use came under the landowner’s permission, or only with his acquiescence.
Accordingly, the judge held that the committee had been entitled to find as they had; R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94 and Mills v Silver [1991] Ch 271 considered.
The claimant appealed, contending that there had to be an overt and contemporaneous expression of permission before such a claim could be defeated upon the ground that the use was permissive. As a matter of principle, the only way in which such expression could be given was orally or in writing.
Held: The appeal was dismissed.
In principle, there was no reason why implied permission could not be relied upon by an owner to defeat a claim that use was “as of right”, and the authorities did not suggest a different conclusion. It was trite law that for the user to be “as of right” it had to be nec vi, nec clam, nec precario (without force, stealth or permission). Thus, the law drew a distinction between an owner’s: (i) acquiescence in, or toleration of, the use of his land by others for lawful sports or pastimes; and (ii) licence or permission for such use. In the context of the law relating to prescription, the difference was fundamental, since any use to which the owner merely acquiesced was prima facie “as of right”, although it might be defeated if the owner could show, inter alia, that he had permitted it.
An essential difference existed as between permission and acquiescence. Permission involved a positive act on the part of the owner: acquiescence equalled passive toleration. Positive acts might take different forms. The grant of oral or written consent was the clearest and most obvious expression of permission, but there was no reason why the grant of permission should be confined to such cases. Permission could be inferred from an owner’s acts. Most instances in which nothing was said or written could properly be classified as cases of mere acquiescence. Although the committee had, to a limited extent, taken account of irrelevant considerations, they were immaterial to their ultimate conclusion, which was not, accordingly, flawed.
Sheila Cameron QC and Douglas Edwards (instructed by Southern Stewart & Walker, of South Shields) appeared for the claimant; Philip Petchey (instructed by the solicitor to Sunderland City Council) appeared for the defendants.
Thomas Elliott, barrister
