Town or village green – Registration – Commons Act 2006 – Use as of right – Appellant applying to register field as town or village green under section 15 of 2006 Act – Field provided and maintained by respondent local authority as recreation ground under section 80(1) of Housing Act 1936 – Whether use by local inhabitants therefore “by right” not “as of right” so as to preclude registration – Appeal dismissed
The appellant applied to the respondent council, under section 15 of the Commons Act 2006, to register a playing field in Whitby as a town or village green on the ground that it had been used as of right by local inhabitants for sports and pastime for the requisite period of 20 years. The land belonged to the interested party, a local borough council whose predecessor had acquired it in 1951 under the provisions of the Housing Act 1936 and had laid it out and maintained it as a recreation ground pursuant to section 80(1); that section permitted local authorities to provide and maintain recreation grounds in connection with the provision of housing under the Act. The relevant provisions of the 1936 Act had since been consolidated in successive Housing Acts, culminating in section 12(1) of the Housing Act 1985.
The respondents refused the appellant’s application on the recommendation of an independent inspector, who took the view that, where land was laid out and maintained as a recreation ground open to the public pursuant to statutory powers, then the public had a legal right to use that land for recreation and their use was “by right”, not “as of right”.
The appellant’s claim for judicial review of that decision was dismissed both at first instance and on appeal: see [2011] EWHC 3653 (Admin) and [2012] EWCA Civ 1373; [2013] 1 EGLR 1; [2013] 02 EG 68. The Court of Appeal held that if a statute conferred a right on the public to use land for recreational purposes, then their use of that land would be “by right”, not “as of right”, and that such a public right would arise either where land was held by a local authority on a statutory trust to allow the public to use it for recreational purposes or where it had been appropriated for recreational purposes under a statute that imposed no such express trust.
The appellant appealed to the Supreme Court. An issue arose as to the soundness of the reasoning in R (on the application of Beresford) v Sunderland City Council [2004] 1 AC 889, in which the House of Lords had held that land acquired under the New Towns Act 1965, and used for recreation pending development plans, was not used “by right”.
Held: The appeal was dismissed.
(1) The expression “as of right” was effectively the antithesis of “of right” or “by right”. It referred to a situation where the use was not rightful, with the permission of the landowner, but was none the less carried on as if it were by right. A person either had a right to be on the land doing what he was doing, or he did not; someone who was using land with the permission of the landowner could not be using it “as of right” rather than “by right”. Where land was provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, the use of that land by the public for recreational purposes was not use “as of right” within the meaning of section 15(2)(a) of the 2006 Act. So long as land was held under a provision such as section 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 use “as of right” could arise. It made no difference, in terms of legal principle or public policy, that the right in question was not a conventional private law right but a public law right, principally enforceable by public rather private law proceedings, or that it was conditional on the local authority continuing to devote the land to the purpose identified in section 12(1) of the 1985 Act. The point was that members of the public were entitled to go onto and use the land, provided that they did so in a lawful manner for the recreational purposes stipulated by section 12(1). Section 12(1) and its statutory predecessors bestowed a power on a local authority to devote land for public recreational use and, for so long as the land was held for that purpose, then the obvious and natural conclusion was that members of the public enjoyed a public right, or publicly-based license, so to use it. Accordingly, where the owner of the land was a local or other public authority, which had lawfully allocated the land for public use, it would not be possible, at least in the absence of unusual facts, to infer that members of the public had been using the land “as of right” simply because the authority had not objected to their use: Hall v Beckenham Corporation [1949] 1 KB 716 applied.
(2) A village green could not be created by dedication or any other voluntary act of the landowner but instead depended on the relevant period of use as of right being established. If land was owned by a public authority with power to dedicate it for public recreation, and was laid out as such, there might be no reason to attribute subsequent public use to the assertion of a distinct village green right: R (on the application of Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 2 AC 70; [2010] 1 EGLR 153 considered. The power under section 3 of the New Towns Act 1965, in respect of land acquired under that Act, were sufficiently wide to include making that land available for public recreation pending any further development proposals. Where a public authority validly exercised its powers to permit such temporary use, the public’s recreational use of the land was authorised and could not be described as merely “tolerated”. So far as the authority actively encouraged such use and facilitated it by maintaining the land, that lent weight, not to an inference of the creation of a modern village green, but to the inference that the authority implicitly approved the public use under other statutory powers. For those reasons, the decision and reasoning of the House of Lords in Beresford should no longer be relied on.
Douglas Edwards QC and Philip Petchey (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Nathalie Lieven QC and Ruth Stockley (instructed by the legal department of North Yorkshire County Council) appeared for the respondents; George Laurence Qc and William Hanbury (instructed by the legal department of Scarborough Borough Council) appeared for the interested party.
Sally Dobson, barrister
