Town or village green – Commons Act 2006 – Use as of right – Respondents refusing application by appellant to register field as town or village green under section 15 of 2006 Act – Field provided and maintained by 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 the Housing Act 1985.
The respondents refused the appellant’s application on the recommendation of an independent inspector. They accepted the inspector’s conclusion that, although the field had been used by a significant number of local inhabitants for lawful sports and pastimes during the relevant 20-year period, so as to meet most of the requirements of section 15(2), it did not meet the requirement that such use be “as of right”. The inspector 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 the land for recreation; consequently, the use of the field by the public had been “by right”, not “as of right”.
The appellant’s claim for judicial review of that decision was dismissed in the court below: see [2011] EWHC 3653 (Admin). The appellant appealed.
Held: The appeal was dismissed.
There was a distinction between use of land “by right” and use “as of right”. If a statute, properly construed, 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. A public right arose in the case of open space held by a local authority under section 10 of the Open Spaces Act 1906, which expressly imposed a trust on the local authority to allow the public to use the land as public walks and pleasure grounds. There was no sensible reason for drawing a distinction between land held on a statutory trust under the 1906 Act and land that had been appropriated for recreational purposes under another enactment, such as section 164 of the Public Health Act 1875, that did not impose an express trust: R (on the application of Beresford) v Sunderland City Council [2004] 1 AC 889 and Hall v Beckenham Corporation [1949] 1 KB 716 applied. In both cases, use of the land by the public for lawful sports and pastimes was by right, not as of right. Nor was there any practical distinction between land that was initially acquired for open space purposes and land that had been appropriated for such purposes from some other use. Local inhabitants could fairly be said to have a statutory right to use land that had been “appropriated” for lawful sports and pastimes because the local authority, having exercised its statutory powers to make the land available to the public for that purpose, was under a public duty to use the land for that purpose until such time as it was formally appropriated to some other statutory purpose.
Similar principles applied to a recreation ground provided under section 80 of the 1936 Act, notwithstanding that such land was nor formally appropriated to open space purposes but was instead acquired, and continued to be held, for housing purposes. Although the local authority was under no obligation to lay out the land as a recreation ground, it had an express statutory power to provide a recreation ground in connection with housing; once it had done so, and the land had been laid out and maintained as a recreation ground under the 1936 Act, and later the 1985 Act, it would be unreal to conclude that the land had not been appropriated for the purpose of public recreation. In the instant case, where a local authority had appropriated the field for the purpose of public recreation under an express statutory power to provide and thereafter maintain it as a recreation ground, the local inhabitants had, throughout the relevant 20-year period, indulged in lawful sports and pastimes on the field by right and not as of right. It followed that the requirements for registration as a green under section 15 of the 2006 Act were not met.
Douglas Edwards QC (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Ruth Stockley (instructed by the legal department of North Yorkshire County Council) appeared for the respondents; William Hanbury (instructed by the legal department of Scarborough Borough Council) appeared for the interested party.
Sally Dobson, barrister