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. Registration will protect the land from development, but applications for registration can be defeated if the landowner can disprove claims that locals have been using the land “as of right” for at least 20 years.
In Barkas v North Yorkshire County Council [2014] UKSC 31; [2014] PLSCS 158, the status of land used for recreation turned on the subtle distinction between use “by right”, which is the antithesis of use “as of right”. Persons using land “by right” will be using it lawfully, having been given permission to do so. By contrast, those using land “as of right” – or, perhaps more accurately, use “as if of right” – will be using it openly, without exercising force, and without obtaining permission to do so. Importantly, 20 years of user “as of right” renders land eligible for registration as a green.
The land at the centre of the dispute belonged to the council. It was surrounded by three local authority housing estates and the council had maintained it as a recreation ground under statutory powers contained in what is now section 12 of the Housing Act 1985 for at least 50 years. Did the longevity of the user for recreational purposes mean that the land qualified for registration as a green?
The Supreme Court upheld the council’s objection to the application to register the land as a green. It held that the users had not been trespassing; they had been exercising their statutory right to use the land for recreation. Indeed, it was difficult to see how the council could have objected to their use of the land on the basis that they were trespassing, since this would have been inconsistent with its decision to keep and maintain the land for recreational purposes. It also seemed very unlikely that the legislature had intended such land to become a green, even though the public had used it for more than 20 years.
What then of the decision in R (Beresford) v Sunderland City Council [2004] 1 AC 889, in which the House of Lords upheld an application to register a sports arena owned by a local authority as a green? Faced with a choice between distinguishing or disapproving the judgment, the Supreme Court decided to grasp the nettle and, rather than leaving the law in a state of uncertainty (which might waste time and money in future proceedings), ruled that Beresford had been wrongly decided. Where a public authority exercises its statutory powers to permit the public to use its land for recreation, such use is “by right”, and the fact that the authority has encouraged such use lends force to the inference that the land has been committed to public use under its statutory powers.
The decision does not mean that land in public ownership will never be eligible for registration as green. However, it adds a useful weapon to the armoury of local authorities seeking to resist applications to register land in their ownership as a town or village green.
Allyson Colby is a property law consultant
