Land can be registered as a green if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes on the land for a period of at least 20 years: section 15 Commons Registration Act 2006. Applications to register town and village greens have become more numerous because they protect land from development, but can be defeated if the landowner is able to disprove claims that locals have been using the land as of right for more than 20 years.
Use “as of right” means use without force, or secrecy, and without permission. It does not mean that users have exercised a legal right to use the land for recreation (or that they believed that they were legally entitled to do so). There is no need for legal intervention if users already use land “by right”. However, the law does enable those who use land “as of right” to acquire legal rights through long user.
Land owned by local authorities may be eligible for registration as a green. In Barkas v North Yorkshire County Council [2012] EWCA Civ 1373, the status of land used for recreation turned on the subtle distinction between use “by right” and “as of right”. The council had maintained the land in question as a recreation ground under statutory powers contained in what is now section 12 of the Housing Act 1985. The land had been open to the public for more than twenty years. Did this mean that it qualified for registration as a green?
The Court of Appeal considered the decision in R (Beresford) v Sunderland City Council [2004] 1 AC 889 carefully, before deciding that the land was not eligible for registration as a green because members of the public had had a statutory right to use it for recreational purposes. The court distinguished Beresford, in which the House of Lords upheld a claim to register a sports arena owned by a local authority, on the ground that the land in question was governed by a different statutory framework relating to the creation of new towns.
The applicant tried, unsuccessfully, to persuade the court that the community had used the recreation ground “as of right” – and not “by right” – because the statute did not expressly entitle the public to use the land. The court found it difficult to distinguish between land impressed with a statutory trust for use for recreational purposes and land that had been appropriated for such use. The field had been laid out and maintained as a recreation ground and it would not reflect reality were the court to conclude that the land had not been appropriated for recreation.
The decision confirms that there is a difference between user pursuant to a statutory right and user as of right. It will add a new weapon to the armoury of local authorities seeking to resist applications to register land in their ownership as a green where the land in question has been used pursuant to statutory provisions, which properly construed, entitle the public to use the land “by right” for recreational purposes.
Allyson Colby, Property Law Consultant
