Applicant applying to have land registered as town or village green – Land used for sport and recreational activities for over 20 years as of right – Respondents finding user not as of right – Implied licence from landowners – Respondents refusing application – Application for judicial review – Whether implied licence sufficient to defeat claim of user as of right – Whether licence had to be express – Sections 13 and 22 of Commons Registration Act 1965 – Application dismissed
In 1998 the planning authority for Sunderland granted permission for the erection of a college of futher education on a site that incorporated land, known as the “Sports Arena”, owned by Sunderland City Council (the respondents). There was local opposition to the project and a pressure group was formed, of which the applicant was a member.
In November 1999 the group applied to the respondents to have the land registered as a town or village green, pursuant to section 13 of the Commons Registration Act 1965. In support of its application, it contended that the inhabitants of Sunderland had indulged in sports or pastimes at the arena, as of right, for a period of more than 20 years, and that the land thus fell within the definition of “town or village green” in section 22 of the Act. The respondents’ licensing committee decided that although the inhabitants had used the arena for sports or recreational facilities for more than 20 years, they had not done so “as of right”, but with the permission or licence of the landowners. The committee found that although there was no express licence, there was evidence of an implied licence, which was sufficient to defeat the application. It therefore refused to amend the register to include the arena as a town or village green.
The applicant sought judicial review of the committee’s decision, principally on the ground that an implied licence was not sufficient to defeat a claim that user was “as of right”. It was submitted that an express licence from the landowner, either oral or written, was required.
Held: The application was dismissed.
A licence or permission inferred from the circumstances of the case could be sufficient to defeat a claim to user as of right. As an implied licence was recognised in law, there was no reason, in principle, why the effect of such a licence should be different from an express permission. In a case where there had been no express permission, the decision-maker had to ask himself whether a reasonable person would have appreciated that the user was with the permission of the landowner, or only with his acquiescence. In practice, if permission was to be shown, there had to be some overt act by the landowner or demonstrable circumstances from which the inference could be drawn, although it might well be that the users were unaware of those matters. The committee was entitled to find as it did: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94 and Mills v Silver [1991] Ch 271 considered.
Douglas Edwards (instructed by Southern Stewart & Walker, of South Shields) appeared for the applicant; Philip Petchey (instructed by the solicitor to Sunderland City Council) appeared for the respondents.
Thomas Elliott, barrister
