R (on the application of Barkas) v North Yorkshire County Council & Anor [2014] UKSC 31

Local residents sought to register a council-owned recreation field as a town or village green under section 15 of the Commons Act 2006. The Supreme Court held their use was 'by right' under statutory housing powers, not 'as of right', and disapproved Beresford.

Facts

Helredale playing field (‘the Field’), a two-hectare recreation ground in Whitby, is owned by Scarborough Borough Council. The Council’s predecessor acquired the land in 1951 under section 73(a) of the Housing Act 1936 as a site for the erection of houses, and laid out and maintained the Field as recreation grounds pursuant to section 80(1) of the 1936 Act (now section 12(1) of the Housing Act 1985), with ministerial consent. For over 50 years, local inhabitants used the Field extensively for informal recreation including children playing, dog walking and football.

In October 2007, Vivienne Wright, on behalf of the Helredale Neighbourhood Council, applied to North Yorkshire County Council to register the Field as a town or village green under section 15 of the Commons Act 2006. Following an inquiry conducted by Vivian Chapman QC, the inspector concluded that although the qualifying use had occurred, it was ‘by right’ rather than ‘as of right’. NYCC accepted this and refused registration. Ms Barkas’ judicial review challenge failed before Langstaff J and the Court of Appeal.

Issues

The central issue was whether, where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 (or its statutory predecessors), public recreational use of that land is ‘as of right’ within the meaning of section 15(2)(a) of the Commons Act 2006. This required the Court to reconsider the House of Lords’ decision in R (Beresford) v Sunderland City Council [2004] 1 AC 889.

Arguments

Appellant (Barkas)

Mr Edwards QC argued that the case was materially indistinguishable from Beresford, where the House of Lords held that public recreational use of local authority land could be ‘as of right’ notwithstanding the statutory basis of the authority’s ownership. He submitted that members of the public using the Field were not licensees or otherwise lawfully present, and thus their use qualified as ‘as of right’.

Respondents

Ms Lieven QC (for NYCC), supported by Mr Laurence QC (for the Council), argued that section 12(1) of the 1985 Act conferred on the public a statutory right to use the Field for recreation. Accordingly, use was ‘by right’ (precario), and the 20-year prescriptive period could not run. She contended Beresford was distinguishable, but also invited the Court to depart from its reasoning.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Neuberger (with whom Lady Hale, Lord Reed and Lord Hughes agreed) delivered the leading judgment, with Lord Carnwath giving a concurring judgment also agreed by the majority.

Meaning of ‘as of right’

Lord Neuberger explained that ‘as of right’ is almost the converse of ‘by right’: use ‘as of right’ is without permission (as if by right), whereas use ‘by right’ is lawful and permitted. Drawing on R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335 and R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, he confirmed that ‘as of right’ means nec vi, nec clam, nec precario — not by force, stealth, or permission.

Application to the Field

Lord Neuberger held that so long as land is held under section 12(1) of the 1985 Act, members of the public have a statutory right to use it for recreation. They therefore use the land ‘by right’, not as trespassers, and no question of ‘as of right’ user can arise. A reasonable local authority would objectively have regarded public presence as pursuant to the statutory right. The right, though a public law right rather than a private law right, is nonetheless a form of licence or permission grounded in statute.

Distinguishing acquiescence and permission

Relying on Dalton v Henry Angus & Co (1881) 6 App Cas 740 and Mills v Silver [1991] Ch 271, Lord Neuberger emphasised the fundamental distinction between mere acquiescence (passive toleration, consistent with ‘as of right’ user) and permission (a positive act of the owner, rendering use precario). Where a public authority has lawfully allocated land for public use, it would be positively inconsistent with that allocation to object to public use; no inference of ‘as of right’ user can be drawn.

Beresford reconsidered

Lord Neuberger held that Beresford could be distinguished because, in that case, the land had been acquired under very wide powers with no specific purpose and had never been appropriated for public recreation. Here, by contrast, the Field was expressly allocated for public recreation from inception under section 80(1) of the 1936 Act. Nevertheless, having considered the matter further and being persuaded by Lord Carnwath’s reasoning, Lord Neuberger concluded that the Court should ‘grasp the nettle’ and hold that the decision and reasoning in Beresford should no longer be relied upon.

Lord Carnwath’s concurring reasoning

Lord Carnwath emphasised that the Commons Registration Act 1965 and the 2006 Act concerned local recreational rights tied to a locality or neighbourhood, and were not intended to embrace public open space generally. He identified deficiencies in the arguments and evidence before the House in Beresford, particularly the failure to consider the New Towns Act 1965 powers under which the corporation had acted, and the fact that the land there had been identified in an approved New Town Plan as ‘parkland/open space/playfield’. He also questioned Lord Bingham’s and Lord Rodger’s reasoning that acts of encouragement by the owner could support an inference of user ‘as of right’, noting that in the context of the modern statutory village green (an entirely new statutory creation), such acts more naturally support the inference that the land has been committed to public use under other statutory powers.

Implications

Legal principles

The decision establishes that where a public authority holds land under a statutory power that authorises or contemplates public recreational use, and members of the public use the land for that purpose, they do so ‘by right’ pursuant to a statutory or publicly based licence. Such use cannot found registration as a town or village green under section 15 of the Commons Act 2006, because it is not ‘as of right’.

The judgment reaffirms the tripartite test nec vi, nec clam, nec precario and clarifies the sharp distinction between acquiescence (which does not defeat ‘as of right’ user) and permission (which does).

Practical significance

The decision has particular importance for local authorities holding land under statutory powers such as section 12(1) of the Housing Act 1985, the Public Health Act 1875, the Open Spaces Act 1906, and the New Towns Acts. Land held and allocated for public recreation under such powers is, in practice, insulated from acquisition of village green status by prescriptive user, because public use will typically be ‘by right’.

The disapproval of Beresford removes a source of uncertainty that had generated litigation and enabled applications to register publicly-owned recreational land as village greens. However, as Lord Carnwath noted (citing the ‘Trap Grounds’ case, Oxfordshire County Council v Oxford City Council [2006] 2 AC 674), public ownership does not preclude village green registration where the land has not been allocated or laid out for public recreation.

Limits

The decision is confined to cases where a public authority has lawfully allocated land for public recreational use under statutory powers. It does not affect claims based on user of privately-owned land, nor does it prevent village green registration of publicly-owned land not so allocated. The precise mechanism by which a local authority might remove land from the ambit of section 12(1) was expressly left open.

Verdict: Appeal dismissed. The Supreme Court held that where land is held by a local authority under section 12(1) of the Housing Act 1985 (or its statutory predecessors) and allocated for public recreation, public use of that land is ‘by right’ and not ‘as of right’ within section 15(2)(a) of the Commons Act 2006, so the Field could not be registered as a town or village green. The Court further held that the decision and reasoning of the House of Lords in R (Beresford) v Sunderland City Council [2004] 1 AC 889 should no longer be relied upon.

Source: R (on the application of Barkas) v North Yorkshire County Council & Anor [2014] UKSC 31