Supreme Court clarifies when property can be registered as village green

Supreme Court Main Entrance 03521C press office supplied  146x219The critical distinction between use of a playing field ‘as of right’ and ‘by right’ for the purposes of deciding whether it can be registered as a town or a village green is explained by Paul Wilmshurst.

In R (on the application of Barkas) v North Yorkshire County Council and another [2014] UKSC 31, [2014] All ER (D) 177 (May) the Supreme Court held that a playing field which had been maintained by the local authority under the Housing Act 1985, s 12(1) and used by the local inhabitants as a recreation ground for more than 50 years could not be registered as a town or village green under the Commons Act 2006, s 15 (CoA 2006) as the inhabitants’ use had not been ‘as of right’.

The court decided that the judgment in R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 All ER 160 was flawed and could no longer be relied upon.

What issue did this case raise?

The issue was the meaning of the words ‘as of right’ where they appear in the test for the registration of a new town or village green contained within CoA 2006, s 15. More particularly, where a local authority has owned land during the relevant 20-year period under statutory provisions, when can it be said that the use of such land has been ‘by right’ and not ‘as of right’.

What is the significance of the decision? To what extent does the judgment clarify the distinction between use of land for recreational purposes ‘by right’ and ‘as of right’?

It is now established in this case that where a local authority has lawfully allocated land for recreational activities, then members of the public who use such land will not be trespassers and will enjoy their use pursuant to publicly based licence or public right. It was held to be irrelevant that the local authority could place conditions on the use or restrict it to certain times of day or periods. Members of the public in these circumstances will, it was held, never be trespassers.

It was reaffirmed that the only test of whether use has been ‘as of right’ is whether such use has been without force, without secrecy and without permission (nec vi, nec clam, nec precario). In Barkas, the various Housing Acts under which the land had been held over the years combined with the ministerial approval for the setting out of the land as a recreation ground meant therefore that the use of the land had been with permission and not ‘as of right’. The provisions of the Housing Acts were wide enough to encompass and enable recreational use without any formal appropriation under the Local Government Act 1972. To express the same thing in a different way, the use will have been ‘by right’. It appears therefore the distinction that emerged in the Court of Appeal between use ‘by right’ and ‘permissive use’ has been reversed.

The court could not avoid having to state, as a result of the above reasoning, that the judgment of the House of Lords ten years ago in R (Beresford) v Sunderland City Council [2003] UKHL 60, [204] 1 All ER 160 was wrongly decided. That was a case where the Washington Sports Arena, a local facility in Sunderland, was registered as a new green. Lord Neuberger in Barkas said that on the facts of Beresford the local authority had clearly "lawfully allocated the land for public use (whether for a limited period or an indefinite period)" and as such it was very unlikely that Parliament could have intended such land to be registered as a new green.

By taking the unusual path of saying that Beresford was wrongly decided, the Supreme Court has simplified the law in a way that is much more favourable to landowners.

Could there be any negative consequences arising from the ruling?

Where land was previously registered on the basis of the decision in Beresford, such land will be susceptible to de-registration pursuant to the Commons Registration Act 1965, s 14 in non-pilot areas and CoA 2006, s 19 in pilot areas.

Practitioners are referred to the case of Betterment Properties (Weymouth) Ltd v Dorset County Council (No 2); Paddico (267) Ltd v Adamson and others [2014] UKSC 7, [2014] 2 All ER 1 for the relevant principles.

What are the implications of the decision for property lawyers and their clients? What should lawyers be mindful of when advising in this area?

This decision will be hugely significant for local authorities that wish to develop land or for developers who have purchased local authority land. It will now be much easier to defeat applications by local inhabitants to register such land in order to save it from development.

However, the decision should not be taken as meaning that local authorities have a general exemption from CoA 2006. It will still be necessary to establish the precise statute under which a local authority has owned land during the qualifying period, and it is not always easy to do this. In the case of land held under the Housing Acts it still appears from the decision in Barkas that it will be necessary for there to have been a decision made at some stage to set the land out for recreational use. The situation under other statutes may vary.

How does the ruling fit in with other developments in this area of law? Do you have any predictions for future developments?

This decision continues the recent trend of decisions that are hostile to local inhabitants’ efforts to register land under CoA 2006. It lowers the bar that objectors to applications to register land have to meet where the issue of public ownership is at stake. However, there are many instances in which it is not clear why a local authority originally acquired land or the circumstances in which the authority may have decided to lawfully appropriate or allocate it to a different use. Many cases require often extensive historical research. This is perhaps, the next battleground in this very litigious area.

Paul Wilmshurst is a barrister at 9 Stone Buildings. He was interviewed by Robert Matthews.

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