Town or village green — Registration application — Whether implied permission from landowner capable of defeating claim of 20 years’ use of land for recreation as of right — Whether possible to imply permission in present case — Section 22 of Commons Registration Act 1965 — Appeal allowed
In 1999, the appellant and other local residents applied to the respondent council, as registration authority under the Commons Registration Act 1965, to register an area of land near the town centre as a town or village green. The land, known as the “sports arena”, was owned by the council, which planned to sell the site for the development of an education college. The sports arena had been used by the public for recreation since at least 1977, and a hard-surface cricket pitch had been laid in 1979. The council had constructed wooden seats around the perimeter and had kept the grass mown.
Section 22(1) of the 1965 Act defined a town or village green as land upon which the inhabitants of the locality had indulged in lawful sports and pastimes as of right for not less than 20 years. The council refused the registration application on the ground that the use of the sports arena had not been “as of right”, but pursuant to an implied permission given by the landowners. They relied upon their conduct in mowing the grass and providing benches, which, they maintained, showed that they had encouraged the public to use the land, from which their permission to do so could be implied.
The appellant’s claim for judicial review of the council’s decision was dismissed by a judge, and that decision was upheld on appeal. The Court of Appeal held that: (i) the council had been entitled to find, on the facts, that there was an implied permission; and (ii) such a finding could defeat a claim that land had been used “as of right”. The appellant appealed.
Held: The appeal was allowed.
1. There was no objection in principle to the implication of a licence where the facts warranted such an implication. To deny that possibility would be unduly old-fashioned, formalistic and restrictive. A landowner might so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants’ use of the land was pursuant to his permission. That might be done, for example, by excluding the inhabitants when the landowner wished to use the land for his own purposes, or by excluding the inhabitants on occasional days. In this way, the landowner asserted his right to exclude, and so made plain that the inhabitants’ use on other occasions occurred because he did not choose on those occasions to exercise his right to exclude, therefore permitting such use. However, authority established that a licence to use land could not be implied from the inaction of a landowner with knowledge of the use to which his land was being put: Davies v Du Paver [1953] 1 QB 184, Mills v Silver [1991] Ch 271 and R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 31 EG 85 applied.
2. In the instant case, the council’s conduct in mowing the grass and providing benches was equivocal: if the land were registered as a town or village green, so enabling the public to resort to it in exercise of a legal right and without the need for any licence, one would expect the council to mow the grass and provide some facilities, thus encouraging public use of this valuable local amenity. The self-same conduct could not be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council’s licence. Qualifying user having been found, the material before the council did not support a conclusion that such user had been otherwise than as of right within the meaning of section 22 of the 1965 Act. Accordingly, the appellant was entitled to have the land registered.
George Laurence QC and Douglas Edwards (instructed by Southern Stewart & Walker, of South Shields) appeared for the appellant; Philip Petchey (instructed by the solicitor to the City of Sunderland) appeared for the respondents.
Sally Dobson, barrister
