A group of Whitby residents have won permission to take their fight to protect a local playing field as a town green to the Supreme Court.
Lord Neuberger, Lord Reed and Lord Carnwath granted permission for a further appeal in the case, following earlier rulings that they had used the playing field “by right”, rather than “as of right”, and so were not entitled to have it registered as a town or village green.
Giving the Court of Appeal’s ruling in the case last October, Sullivan LJ said: “When local inhabitants indulge in lawful sports or pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of right’?
“A non–lawyer would dismiss the distinction as a semantic quibble, but the correct legal answer is of considerable importance, both for local authorities and for those who apply under section 15 of the Commons Act 2006 to register as a town or village green land which they may have used for many years for recreational purposes.”
He said that there was no dispute in the case that, for the 20-year period from 1987–2007 on which the local residents founded their application, the Haredale playing field at Haredale Road, Whitby, was maintained as a recreation ground by Scarborough Borough Council.
As a result, the inspector who considered the case concluded that the locals had a legal right to use the land for harmless recreation, and so enjoyed the land “by right” rather than “as of right”, at least until 2003, when the borough council ceased to be the owner of surrounding council houses. North Yorkshire County Council rejected the residents’ application on the inspector’s findings, and that decision was subsequently upheld by the high court.
Barkas v North Yorkshire County Council
A group of Whitby residents have won permission to take their fight to protect a local playing field as a town green to the Supreme Court. Lord Neuberger, Lord Reed and Lord Carnwath granted permission for a further appeal in the case, following earlier rulings that they had used the playing field “by right”, rather than “as of right”, and so were not entitled to have it registered as a town or village green. Giving the Court of Appeal’s ruling in the case last October, Sullivan LJ said: “When local inhabitants indulge in lawful sports or pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of right’? “A non–lawyer would dismiss the distinction as a semantic quibble, but the correct legal answer is of considerable importance, both for local authorities and for those who apply under section 15 of the Commons Act 2006 to register as a town or village green land which they may have used for many years for recreational purposes.” He said that there was no dispute in the case that, for the 20-year period from 1987–2007 on which the local residents founded their application, the Haredale playing field at Haredale Road, Whitby, was maintained as a recreation ground by Scarborough Borough Council. As a result, the inspector who considered the case concluded that the locals had a legal right to use the land for harmless recreation, and so enjoyed the land “by right” rather than “as of right”, at least until 2003, when the borough council ceased to be the owner of surrounding council houses. North Yorkshire County Council rejected the residents’ application on the inspector’s findings, and that decision was subsequently upheld by the high court. Barkas v North Yorkshire County Council
