Barkas v North Yorkshire County Council

When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so “by right” or “as of right”? A non-lawyer would dismiss the distinction as a semantic quibble, but the correct legal answer is of considerable importance, both for local authorities and for those who apply under section 15 of the Commons Act 2006 (“the 2006 Act”) to register as a town or village green land which they may have used for many years for recreational purposes.

Section 15 of the 2006 Act provides, so far as material:

“15 Registration of greens

(1)

Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2)….. applies.

(2)

This subsection applies where –

(a)

a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

(b)

they continue to do so at the time of the application.”

The Appellant’s application under section 15 to register the Helredale playing field at Helredale Road, Whitby in North Yorkshire (“the Field”) as a town or village green (TVG) was rejected by the Respondent because it accepted the conclusion of an independent Inspector, Mr. Vivian Chapman QC, that although the use of the Field met all of the other requirements of section 15(2), the local inhabitants’ use of the Field for recreational purposes had been “by right” and not “as of right”.

The Appellant accepts that if the correct position in law is, as the Inspector concluded, that the local inhabitants were using the Field by right, then the Field may not be registered as a TVG under section 15 because that section provides that the land must be used as of right in order to be registered.

Langstaff J dismissed the Appellant’s claim for judicial review of the Respondent’s decision not to register the Field as a TVG: [2011] EWHC 3653 (Admin). Permission to appeal was refused on the papers, but on a renewed oral application before the Vice President, Mr Douglas Edwards QC (who did not appear before Langstaff J) advanced a new ground of appeal which had not been raised before Langstaff J. The Vice President granted permission to appeal on the new ground because of its general importance, but refused permission to appeal in respect of the remaining grounds, all of which had been argued before, and rejected by, Langstaff J.

There is no challenge to the Inspector’s factual conclusions that the Field, which he said “has all the appearance of a typical municipal recreation ground” was acquired by the Whitby Urban District Council (“the UDC”), the predecessor of Scarborough Borough Council, the Interested Party, (“the Borough Council”) in 1951 under section 73 of the Housing Act 1936 (“the 1936 Act”) as a site for the erection of houses for the working classes. Section 72(1) of the 1936 Act authorised the UDC to provide housing accommodation for the working classes by the erection of houses on any land so acquired. The Field was laid out and maintained by the UDC as a recreation ground under section 80(1) of the 1936 Act, which provided:

“80 (1) The powers of a local authority under this Part of this Act to provide housing accommodation, shall include a power to provide and maintain with the consent of the Minister and, if desired, jointly with any other person, in connection with any such housing accommodation, any building adapted for use as a shop, any recreation grounds, or other buildings or land which in the opinion of the Minister will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.”

These provisions in the 1936 Act were consolidated without material amendment, save for the deletion of the requirement that the housing should be provided for “the working classes”, in the Housing Act 1957, and are now contained in the Housing Act 1985 (“the 1985 Act”). Section 12(1) of the 1985 Act provides:

“12.

Provision of shops, recreation grounds, etc.

(1)

A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part –

(a)

Buildings adapted for use as shops,

(b)

Recreation grounds, and

(c)

Other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.”

The application to register the Field as a TVG is dated 12^th October 2007. There is no dispute that the Field was maintained as a recreation ground by the Borough Council under section 12 of the 1985 Act for the relevant 20 year period from 1987 – 2007.

Against this factual background the Inspector said in paragraphs 124 and 125 of his report:

“124 The question that arises is whether local people had a legal right to use a recreation ground which was set out under s. 80 of the 1936 Act and (during the relevant 20 year period) maintained under s. 12 of the 1985 Act as a recreation ground open to the public. The Open Spaces 1906 Act created by s. 10 an express statutory trust for public recreation. However, there is authority that where a statute empowers a local authority to acquire and lay out land for public recreation, the public have a legal right to use it. This point has been explored in relation to Public Health Act 1875 s. 164 (which contains no express trust for public recreation) in a series of cases:

A-G v Loughborough Local Board The Times 31^st May 1881

Hall v Beckenham Corporation [1949] 1 KB 716

Sheffield corporation v Tranter [1957] 1 WLR 843

Blake v Hendon Corporation [1962] 1 QB 283

The same principle must apply to a recreation ground laid out under statute as an area for public recreation on a council estate. Council tenants, who are the primary objects for the provision of recreation, must have had a legal right to use the land for harmless recreation. It would be absurd to think of them as trespassers unless they first obtained the permission of the council to use the land for harmless recreation. Where the recreation ground, as in the present case, is laid out and maintained as a recreation ground open to the public pursuant to statutory powers, it seems to me that the public must similarly have a legal right to use the land for harmless recreation. Again, it would be absurd to regard them as trespassers. This view is supported by the obiter comments of Lord Walker in para. 87 of Beresford. I therefore consider that at least until 2003, when [the Borough Council] ceased to be owner of the remaining council houses, recreational use of the Field by local people was by right and not as of right. I did not hear any argument on the effect of the 2003 transfer of the remaining housing stock to Yorkshire Coast Homes, but it is not necessary for present purposes to consider the post 2003 legal situation.

125 I therefore consider that, at least until 2003, recreational user of the Field by local people was not “as of right”. The application fails on this ground”.

The Inspector had referred to the case of R (Beresford) v Sunderland City Council [2004] 1 AC 889 in paragraph 121 of his report, as follows:

“121 In my view, the critical issue in this case is whether recreational user of the Field by local people was “by right” or “as of right”. Although the discussion of the point was obiter, there is strong guidance from the House of Lords in Beresford that user which is under a legal right is not user “as of right”

Lord Bingham paras 3 & 9

Lord Hutton para 11

Lord Scott paras 29-30

Lord Rodger para 62

Lord Walker paras 72, 87 & 88

The comments of Lord Walker at para. 87 are particularly pertinent. He considered that it would be difficult to regard recreational users as trespassers acting as of right not only where there was a statutory trust under s. 10 of the Open Spaces Act 1906 but also where land had been appropriated for the purposes of public recreation. Under s. 122 of the Local Government Act 1972 (as amended) a local authority can appropriate land from one statutory purpose to another. I understand Lord Walker to be remarking that if a local authority holds land for a statutory purpose which involves public recreational use of the land (albeit without an express statutory trust in favour of the public) use of that land for public recreation would not be “as of right”.”

Before considering Beresford, which Mr. Edwards placed at the heart of his submissions on behalf of the Appellant, it is helpful to mention the other statutory powers under which local authorities may provide open space/recreation grounds. Section 164 of the Public Health Act 1875 (“the 1875 Act”) gave urban authorities power to provide places of public recreation. As amended by the Local Government Act 1972 (“the 1972 Act”) it provides:

“164.

Any local authority may purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever.

Any local authority may make byelaws for the regulation of any such public walk or pleasure ground, and may by such byelaws provide for the removal from such public walk or pleasure ground of any person infringing any such byelaw by any officer of the local authority or constable.”

Section 9 of the Open Spaces Act 1906 (“the 1906 Act”) empowered local authorities to acquire by agreement “any open space or burial ground” whether within or outside their district. “Open space” is defined in section 20 of the 1906 Act:

“The expression “open space” means any land, whether inclosed or not, on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden or is used for purposes of recreation, or lies waste and unoccupied…”

Section 10 of the 1906 Act provides for the maintenance of any open space so acquired:

“A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest, or control was so acquired –

(a)

hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose: and

(b)

maintain and keep the open space or burial ground in a good and decent state.

And may inclose it or keep it inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, provide with seats, and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any of them.”

Section 19 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”) confers a power to provide a wide range of recreational facilities:

“(1)

A local authority may provide, inside or outside its area, such recreational facilities as it thinks fit and, without prejudice to the generality of the powers conferred by the preceding provisions of this subsection, those powers include in particular powers to provide –

(a)

indoor facilities consisting of sports centres, swimming pools, skating rinks, tennis, squash and badminton courts, bowling centres, dance studios and riding schools;

(b)

outdoor facilities consisting of pitches for team games, athletics grounds, swimming pools, tennis courts, cycle tracks, golf courses, bowling greens, riding schools, camp sites and facilities for gliding;

(c)

facilities for boating and water ski-ing on inland and coastal waters and for fishing in such waters;

(d)

premises for the use of clubs or societies having athletic, social or recreational objects;

(e)

staff, including instructors, in connection with any such facilities or premises as are mentioned in the preceding paragraphs and in connection with any other recreational facilities provided by the authority;

(f)

such facilities in connection with any other recreational facilities as the authority considers it appropriate to provide including, without prejudice to the generality of the preceding provisions of this paragraph, facilities by way of parking spaces and places at which food, drink and tobacco may be bought from the authority or another person;

and it is hereby declared that the powers conferred by this subsection to provide facilities include powers to provide buildings, equipment, supplies and assistance of any kind.

(2)

A local authority may make any facilities provided by it in pursuance of the preceding subsection available for use by such persons as the authority thinks fit either without charge or on payment of such charges as the authority thinks fit. ”

When the 1875 Act was enacted a local authority had no power to appropriate land which it had acquired for one statutory purpose to another purpose. The power to appropriate to another purpose with the approval of the Minister was introduced by the Local Government Act 1933, and the general power is now contained in section 122(1) of the 1972 Act:

“122.

(1) Subject to the following provisions of this section, a principal council may appropriate for any purposes for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation; but the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned.”

The general power to appropriate is qualified in the case of land held as open space by subsections (2A) and (2B) inserted by the Local Government Planning and Land Act 1980:

“(2A) A principal council may not appropriate under subsection (1) above any land consisting or forming part of an open space unless before appropriating the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed appropriation which may be made to them.

(2B) Where land appropriated by virtue of subsection (2A) above is held –

(a)

for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds); or

(b)

in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds),

the land shall by virtue of the appropriation be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with the said section 164 or, as the case may be, the said section 10. ”

In Beresford the land in question had been acquired by the Washington Development Corporation (“the Corporation”) under the New Towns Act 1965 (“the New Towns Act”) as part of its development of Washington New Town. Under the New Towns Act, New Town Development Corporations were given very wide powers. For the purpose of securing the laying out and development of the New Town the Corporation had power under section 3(2) of the New Towns Act:

“(a)

to acquire, hold, manage and dispose of land and other property:

(b)

to carry out building and other operations;

(c)

to provide water, electricity, gas, sewerage and other services:

(d)

to carry on any business or undertaking in or for the purposes of the new town,

and generally to do anything necessary or expedient for the purposes of the new town or for purposes incidental thereto.”

Normal planning controls were dispensed with, and the Minister would give planning permission by a Special Development Order for the Corporation’s proposals submitted and approved under section 6(1) of the Act:

“6.–(1) The development corporation established for the purposes of a new town shall from time to time submit to the Minister, in accordance with any directions given by him in that behalf, their proposals for the development of land within the area of the new town, and the Minister, after consultation with the local planning authority within those area the land is situated, and with any other local authority who appear to him to be concerned, may approve any such proposals either with or without modification.”

In the Corporation’s New Town Plan 1973, which would have been approved under section 6(1), the land was identified as “parkland/open space/playing field.” It was laid out and grassed over by the Corporation in 1974. From 1974 the Corporation and its successors mowed the grass each summer. In 1977 benches were installed around three sides of the land, and a non-turf cricket wicket was laid down in 1979. On the evidence, the land was used by the public for various recreational activities for at least 20 years from 1977: see the opinion of Lord Scott at paragraphs 17 and 18.

The application to register the land as a TVG under the Commons Act 1965 (“the 1965 Act”) was refused by the registration authority on the basis that the land had been used by the public by virtue of an implied licence from the Corporation and its successors, the Commission for the New Towns and the Sunderland City Council, and not as of right. In the High Court and the Court of Appeal the applicant’s challenge to this decision was rejected. The House of Lords allowed the applicant’s appeal. Lord Bingham considered the meaning of the words “as of right” in paragraphs 3 and 4 of his opinion:

“3.

In this context it is plain that “as of right” does not require that the inhabitants should have a legal right since in this, as in other cases of prescription, the question is whether a party who lacks a legal right has acquired one by user for a stipulated period. It is also plain that “as of right” does not require that the inhabitants should believe themselves to have a legal right: the House so held in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 354 356. It is clear law, as summarised in the last-mentioned decision, that for prescription purposes under the Prescription Act 1832 (2 & 3 Will 4, c 71), the Rights of way Act 1932 and the 1965 Act “as of right” means nec vi, nec clam, nec precario, that is, “not by force, nor stealth, nor the licence of the owner”: see pp 350, 351, 353-354. In this case there was no question of force or stealth. So the only question is whether the inhabitants’ user was by the licence of the owner.

4.

It was not suggested that the council had expressly licensed the inhabitants’ use of the land, either in writing or orally. The argument was accordingly directed to whether it was ever possible to imply a licence by a landowner to use land in the manner prescribed by the statute and, if so, whether the facts here could properly be held to give rise to such an implication.”

Having said that a licence could, in principle, be implied where the facts warranted such an implication (paragraph 5), Lord Bingham said that a licence could not be implied from the mere inaction of a landowner with knowledge of the use to which his land was being put (paragraph 6); and he rejected the local authority’s submission that a licence could be implied because it had encouraged the public to use its land, by mowing the grass and by providing benches for spectators. In paragraph 7 of his opinion Lord Bingham said that this argument was open to a fundamental objection:

“7.

As already pointed out, the [Commons Act 1965] drew heavily on principles established under the Acts of 1832 and 1932, relating to private and public rights of way respectively, and in neither of these instances could acts of encouragement by the servient owner be relied on to contend that the user by the dominant owner had not been as of right. Such conduct would indeed strengthen the hand of the dominant owner. Here the conduct is in any event 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 for those so resorting, thus encouraging public use of this valuable local amenity. It is hard to see how the self-same conduct can 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.”

At the initial hearing of the appeal before the House of Lords the parties did not deal with the implications of the public ownership of the land, and the appeal was restored for further written and oral argument: see paragraph 23 of Lord Scott’s opinion. Lord Bingham dealt with this issue in paragraph 9 of his opinion:

“9.

The foregoing paragraphs of this opinion are directed to the issue which was contested before the lower courts and debated between the parties on the hearing of this appeal. After the House had reserved judgment at the conclusion of oral argument, however, the House became concerned to explore the possibility that, on the special facts of this case, the inhabitants of the locality might have indulged in lawful sports and pastimes for the qualifying period of 20 years or more not “as of right” but pursuant to a statutory right to do so. Such use would be inconsistent with use as of right. Counsel were invited to make written submissions on the point, which had not been raised or investigated below, and the House heard further oral argument on it. The House is grateful to counsel for responding so fully to its invitation, and consideration has been given to every statutory provision which appeared to be potentially relevant. In the event, I do not find it necessary to review these provisions in detail since it is to my mind clear that none of them, on the facts found or agreed, can be relied on to confer on the local inhabitants a legal right to use the land for indulgence in lawful sports and pastimes. Indeed Mr. Petchey for the council, who had not himself sought to raise this contention earlier, found it hard to argue otherwise.”

Lord Bingham agreed with Lord Scott, Lord Rodger and Lord Walker (paragraph 10). Lord Hutton agreed with Lord Walker, Lord Rodger and Lord Bingham (paragraph 11).

In paragraph 30 of his opinion Lord Scott said:

“30.

It is, I think, accepted that if the respondent council acquired the sports arena “under the 1906 Act”, the local inhabitants’ use of the land for recreation would have been a use under the trust imposed by section 10 of the Act. The use would have been subject to regulation by the council and would not have been a use “as of right” for the purposes of class c of section 22 (1) of the Commons Registration Act 1965. But Mr. Petchey accepted that Mr. Laurence was correct in contending that the sports arena had not been acquired “under the [1906] Act” and that section 10 did not, therefore, apply….”

Lord Rodger, who agreed with Lord Bingham and Lord Walker, dealt with the parties’ further submissions in paragraph 62 of his judgment:

“62.

After the first hearing of the appeal, however, your Lordships invited further written and oral submissions from counsel on whether any of the statutes that may apply to local authority land had conferred on the local residents and others a right to use the sports arena – with the result that their use would be “of right”, as opposed to being “as of right” in terms of section 22 (1) of the 1965 Act. Having considered those submissions, for the reasons given by my noble and learned friend, Lord Walker of Gestingthorpe, I am satisfied that, on the agreed facts, neither the designation of the land as “open space” in the New Town Plan nor any of the statutes conferred any such right in this case.”

Lord Walker dealt with the parties’ further submissions in paragraphs 86-88 of his opinion:

“86.

I would however add that I feel some sympathy for the view taken by the courts below. The city council as a local authority is in relation to this land in a different position from a private landowner, however benevolent, who happens to own the site of a traditional village green. The land is held by the city council, and was held by its predecessors, for public law purposes. A local resident who takes a walk in a park owned by a local authority might indignantly reject any suggestion that he was a trespasser unless he obtained the local authority’s consent to enter. He might say that it was the community’s park and that the local authority as its legal owner was (in a loose sense) in the position of a trustee with a duty to let him in. (Indeed that is how Finnemore J put the position in Hall v Beckenham Corpn [1949] 1 KB 716, 728 which was concerned with a claim in nuisance against a local authority, the owner of a public park, in which members of the public flew noisy model aircraft). So the notion of an implied statutory licence has its attractions.

87.

After that approach had been suggested there was a further hearing of this appeal in order to consider the effect of various statutory provisions which were not referred to at the first hearing, including in particular section 10 of the Open Spaces Act 1906, sections 122 and 123 of the local Government Act 1972 and section 19 of the Local Government (Miscellaneous Provisions) Act 1976.

88.

Those situations would raise difficult issues but in my opinion they do not have to be decided by your Lordships on this appeal, and would be better left for another occasion. The undisputed evidence does not establish, or give grounds for inferring, any statutory trust of the land or any appropriation of the land as recreational open space. Counsel for Sunderland rightly did not argue for some general implied exclusion of local authorities from the scope of section 22 of the Commons Registration Act 1965.”

When summarising the salient points of the evidence Lord Walker said that the land had been acquired by the Corporation as part of “an extensive acquisition under the very wide powers of the New Towns Act 1965.” The land was not acquired by the Corporation for any specific purpose and it was not under an obligation to appropriate it for any specific purpose, such as housing, public buildings or open space (paragraph 89(a)). In paragraph 90 of his opinion Lord Walker said that there was no evidence of any formal appropriation of the land as open space by the City Council or its predecessors, nor was there any material from which such an appropriation could be inferred.

I have dealt with Beresford at some length because it is the only case in which consideration has been given to the issue which arises in this case, albeit on the basis of further submissions, and in the context of the “very wide powers” conferred by the New Towns Act. Mr. Edwards accepts that Beresford is authority for the following propositions:

It was common ground in Beresford that open space held by a local authority under section 10 of the 1906 Act was used by right and not as of right: see paragraph 30 of Lord Scott’s opinion, and paragraph 87 of Lord Walker’s opinion (above, paragraphs 22 and 24). Mr. Edwards distinguishes the rights of the public under section 10 of the 1906 Act from their rights under the other enactments, including section 80 of the 1936 Act, under which local authorities provide open space or recreation grounds, because Parliament has expressly provided that a local authority holding land under section 10 holds the land “in trust to allow…..the enjoyment thereof by the public as an open space …. and for no other purpose.” He submits that where Parliament wishes to confer a right to use land for recreational purposes it does so in express terms.