Recreation ground cannot be registered as village green, says Court of Appeal
A recreation ground provided by a local authority in exercise of its statutory powers for local people to take part in lawful sports and pastimes cannot be registered as a town and village green, the Court of Appeal has ruled.
The case of Barkas v North Yorkshire County Council [2012] EWCA Civ 1373 centred on the Helredale playing field at Helredale Road, Whitby in North Yorkshire.
The field was acquired by Whitby Urban District Council (UDC) – the predecessor of Scarborough Borough Council (an interested party in this case) – in 1951 as a site for the erection of houses for the working classes.
The UDC laid out and maintained the field as a recreation ground under s. 80(1) of the Housing Act 1936 (provisions that are now contained in the Housing Act 1985).
Scarborough maintained the field for the relevant 20-year period from 1987-2007. However, it then announced plans to build on the site.
The appellant applied in 2007 under s. 15 of the Commons Act 2006 to register the field as a town or village green.
The county council rejected this application after accepting the conclusion of an independent inspector, Vivian Chapman QC, that although the use of the field met all of the other requirements of s. 15(2) of the 2006 Act, the local inhabitants’ use of the field for recreational purposes had been ‘by right’ and not ‘as of right’.
The appellant’s claim for judicial review was dismissed by Mr Justice Langstaff in 2011.
Lord Justice Sullivan, giving the unanimous judgment of the Court of Appeal, said: “The field was ‘appropriated for the purpose of public recreation’ by the UDC and its successor the borough council under an express statutory power to provide and thereafter maintain it as a recreation ground.
“Throughout the 20-year period the local inhabitants indulged in lawful sports and pastimes on the field by right and not as of right.”
However, an application has been made for permission to appeal the case to the Supreme Court.