Barkas, R (on the application of) v North Yorkshire County Council & Scarborough Council

MR JUSTICE LANGSTAFF: The Haredale playing field at Haredale Road, Whitby, became used as a playing field as long ago as 1948. On 12th October 2007 an application was made by some of those living close to the playing field to register the land as town or village green.

As one leaves Whitby toward Scarborough, the Haredale Road will take one past the playing field. It is as an inspector, Vivian Chapman QC, who was later to describe a field which was bell shaped in plain view. There were housing estates to the east and to the west. At the foot of the bell, the southern side of the field, there was further housing.

A non statutory Inquiry was heard in April 2010 with Mr Vivian Chapman QC as the inspector. In his report on 28th July 2010, he came to the conclusion that the use of the land on the evidence that he had received, which broadly he accepted, in so far as it came from the local residents, had been exercised without forcible entry by them onto the land, had not been exercised secretly and was not precarious in the sense of being expressly permissive. However, he declined to advise registration of the land because of the Commons Act 2006, section 15 provides an obligation to register where a significant number of the inhabitants of any locality 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 continued to do so at the time of the application (section 15(2)(a) and (b)). He concluded that the use made by the residents was not as of right, which implies that there is no actual statutory right, but it was by right.

The claimant takes issue with that conclusion. She argues that the use was upon a proper understanding of the applicable legislation as of right and not by right, at least by some of those who used the playing field and therefore the inspector's advice was flawed.

The defendant council received the inspector's report and a further report dealing with matters which had been raised by the applicants in October 2010 and preceded to a decision of which formal notification was given on 29th October 2010. Both parties before me, the interested party taking no active part in the proceedings on the basis that it stands by the approach of the defendant and does not wish to make separate submissions, ask me to accept that the local authority adopted the views of the inspector. Accordingly, if he was in error, the local authority was in error and its decision to refuse to register was legally flawed.

The issue for me arising out of that brief synopsis is whether the Inspector was wrong in law to conclude that the public had a legal right to use the land for recreational purposes when it was laid out and maintained as a recreation ground, open to the public, pursuant to the Housing Acts.

This question was addressed by the Inspector at paragraph 121 of his report of July 2010. He said:

Section 80 comes in a part of the Act, Part 5 entitled "Provision of housing accommodation for the working classes". It is common ground that between the parties before me, that those words set out the purposes of the Part. Section 80 reads as follows:

Section 79(1) (a) to which the Inspector made reference is in the same part and reads:

The Inspector postulated at paragraph 124 that the question that arose was whether local people had a legal right to use a recreation ground which was set out under section 80 of the 1936 Act and during the relevant 20-year period maintained under section 12 of the 1985 Act as a recreation ground open to the public. The reference to section 12 of the 1985 Act is a reference to the Housing Act of 1985, which is the statutory successor of section 80. It makes no reference to the working classes, but in section 12 reads:

The Inspector reasoned, further in paragraph 124, that the Open Spaces Act 1906, created by section 10 and expressed statutory trust for public recreation. However, he observed:

The obiter comments of Lord Walker in paragraph 87 of Beresford, which support the Inspector's views, he thought as to the absurdity of concluding that some using the ground for recreation in the particular circumstances of this case should be treated as trespassers was a reference to the following passage in Lord Walker's speech in Beresford:

Mr Ormondroyd, for the claimant, argues, in an argument of subtlety and care, that the Inspector in those passages which I have cited made a mistake of law. He wrongly introduced the word "public" into paragraph 122. The power under section 80 of the 1936 Act was a power to provide a recreation ground; the word "public" does not appear. Yet the Inspector said, in a relevant passage:

The power expressly was to be exercised to serve a beneficial purpose in connection with the requirements of the persons for whom the relevant Housing accommodation is provided. Those persons, he submits, were the council tenants of the Western Estate, who belonged to the working classes. It was for them and them only that the recreation ground could be provided under section 80. Although he was prepared to accept that the local authority had power to allow others onto the land, should it wish to do so, they would not come onto that land by right those who lived in the housing estate in respect of which the recreation ground was provided where those who had the right under statute to use the recreation ground.

As a matter of fact it is accepted that the recreation ground was acquired by the local authority and laid out as a recreation ground, in connection with the Western Estate not the Eastern or the Southern Estates. Accordingly, any person from either of those two latter estates who used the land, and the evidence before the Inspector was that many such persons did, would not use the land by right on the findings of the fact of the Inspector they would use it as of right. There would thus be persons who would be entitled to make an application under the Commons Act 2006, upon a proper application of that Act therefore, since the requirements of the Act were met, the land should have been registered as a town or village green.

He submits that the Inspector was not entitled to draw the conclusion he did from the Green case. I now return to examine that case in the light of the submissions made by Mr Ormondroyd. In that case, what was centrally in issue was, first, whether the local authority, by section 73 of the Housing Act 1976 had the power to acquire any land, as the site for the erection for houses for the working classes, if the local authority intended that some of those houses should be occupied by persons who are not members of the working classes. A second issue arose under section 80. That was whether, if the local authority intended that buildings intended for use as shops, recreation grounds and other buildings would be available to the general public and not just the council house occupants, who were of the working class, the local authority had power to do what it wished to do.

Denning J (as he then was) dealt with the first question by stating that he was satisfied that the local authority did not mean to restrict itself in its letting of the houses, it was to build on the land it was attempting to acquire, to those who were of any particular class. He did not however, regard that as invalidating the exercise of the powers. He then said this, page 41:

Mr Ormondroyd argues that that case considered whether the exercise of the power of compulsory purchase was invalid because of the intention of the local authority that the facilities to be built upon the land so purchased would be used not just by residents of the council accommodation but also by others. It was not also authority for the proposition that members of the public, outside the council tenants had a statutory right to use the facilities to be provided under that section. The question of user rights was not relevant and it was not discussed even in passing. He accepted however that on the basis of Green, the council could allow use of the land by persons other than its tenants.

He argued that the analogy with the cases under section 164 of the Public Health Act 1875 was not a proper analogy which could be of any assistance to the Inspector. That is because the 1875 Act, within its terms, provides that a local authority may purchase "... lands for the purpose of being used as public walks or pleasure grounds ..." That is a power expressly to provide a pleasure ground for public use. Where there is a power, which may be exercised to provide land for public purposes, the public have, or may have a right to use the land for those purposes. But section 80 contains no word "public" qualifying "recreation grounds". He was therefore happy to accept that the case law under section 164 says what the Inspector concluded it did but argued that this was beside the point. In my view, his contention here has some force. In order to decide whether the land at Haredale playing field is land which the public more generally than those who occupy council housing in the nearby estate to the west were entitled to. It cannot assist to begin, by regarding the recreation ground as a public ground because that begs the question. He notes that section 79, by contrast uses the word "public". He submits that there is no proper assistance to be gained, as the Inspector purported to gain it, from the observations that Lord Walker made in Beresford. The reasoning in Lord Walker's speech is contained in the paragraphs up to including paragraph 85, beyond that including paragraph 87. His remarks are obiter. The reference by Lord Walker to the Open Spaces Act 1906 was beside the point here, where neither party was asking the court to conclude that the Open Spaces Act 1906 applied, the statutory power which was being exercised, so the Inspector found was that under section 80 of the Housing Act. Secondly, his observation, at the conclusion of paragraph 87.

In my view the first question is whether on the facts as set out by the Inspector and which are not subject to challenge, the provision of a playing field at Haredale came within section 80 of the Housing Act. Plainly, in my view, it did. The local authority was empowered to provide and maintain "any recreation grounds" in connection with the Housing Act accommodation, in this case the western estate; which would serve a beneficial purpose in connection with the requirements of the persons in that estate.

This requires a court to ask whether the land was acquired in connection with that accommodation, plainly on the findings of fact by the Inspector it was. But was it a recreation ground? Plainly it was. Did it serve a beneficial purpose in connection with the requirement of the persons who were council tenants of the working class in the western estate? Plainly it did. Accordingly, those persons, in my view, were entitled to use the recreation ground under the Housing Act 1936. Thus far Mr Ormondroyd would agree.

The question then arises whether those who were not counsel tenants in that class, in that estate, but lived elsewhere would also be entitled to use the land.

This is a general question, applicable to all cases in which section 80 of the Housing Act 1936 and its statutory successors have been used.

Here, it is plain from the decision in Green that the local authority had power to permit other people to use the recreation ground at the very least. When I invited Mr Ormondroyd to say what the power was, he could point only to section 80. The context is, as the Inspector observed, that a local authority is a statutory body. It can only act if it has statutory power to do so. It could therefore only permit the use of the recreation ground if it had power to do so. The argument that the recreation ground is provided so as to confer an entitlement only upon those in the Western estate is therefore an argument that there is no power to provide the same facility for others, even although the recreation grounds provision is within the four corners of the wording of the Act. This, it seems to me, is directly analogous to the situation which presented itself before Denning J in the case of Green. He concluded, in reasoning, which I gratefully adopt, that the fact that a local authority intended, in his case, that the land be used by those other than the persons for whose principal benefit the statutory power existed did not invalidate the exercise of that power.

Accordingly, as it seems to me, the local authority had power to set out a recreation ground which might be intended for use by the public if that is what the local authority so chose. Here, it seems to me that there is a finding of fact by the Inspector that the ground was set out as a public recreation ground. The local authority set it out. When it did so, according to the Inspector's report, it provided entrances and exits to and from the recreation ground, to the northeast, the northwest, the southeast and the southwest. Those exits and entrances did not lead to and from the Western estate alone.

He described the playing field as having all the appearance of a typical municipal recreation ground with easy access from the surrounding estate (paragraph 6). He described the entrances to the field as being four public entrances. He had an accompanied site view. He was therefore plainly of the view, from that material, and from his visit, that this field had all the characteristics of a field open to the public and could only have concluded that it was set out in that way.

His observations about section 79 of the Housing Act 1936 were to the effect that the local authority could provide a public recreation ground in pursuance of its powers in respect of that Part of the Act and therefore for the purposes of that Part which I have already described. He bolstered that view, rightly in my judgment, by considering the observations of their Lordships in Beresford (see paragraph 121) for all the passages which he considered. But essentially he took the comments of Lord Walker as demonstrating support for the view that it would be absurd to draw a distinction between classes of use by different classes of people, in circumstances in which the recreation ground was set out with every appearance of it being for public use, under a power which permitted it and in pursuance of a section which, as Mr Ormondroyd accepts, does not draw any distinction between the council house tenants and others when it came to the use of facilities provided under the power contained in that section.

Accordingly I accept that the construction which I prefer of the applicable legislation is exactly that which commended itself to the Inspector and this avoids the absurd consequence of distinctions having to be made between those who are working class and those who are not, at least while that unfortunate description could be said to apply for those who were tenants of the council in council houses and others for at least as long as they did. The analysis conducted by Mr Ormondroyd, in my view, misses the point.

The point is whether or not a recreation ground could be provided. If it was and if it was laid out for general public use, there would be nothing that would prevent it. That does not mean in my view that some of those using it were trespassers, whether to be regarded as tolerated trespassers or not, nor does it mean that they were permitted to be there and, I should add, if they had been permitted or were held to be permitted to be there, then they would be in no position to make an application under the 2006 Act because their position would be precarious within the traditional meaning of that word.

The conclusion I reach is furthermore consistent with the position of a local authority as a public body. Its powers and its duties are related to the fact that it is representative of those who come within its area of authority. That area is far larger and wider than a housing estate on part of the local authority's area.

The emphasis in the sections of the Housing Act is on public provision, it is not, as I read it, essentially upon making provision for classes of the public distinct from one another, even though a recreation ground may only be set up under section 80 if it will be of benefit to people in housing accommodation to which that is related. The point I make about the general functions of a local authority is amply supported by considering other statutes, which demonstrate that the public policy is in emphasising the public provision which local authorities may make (see for instance the Open Spaces Act and the 1875 Act) to the extent that they may be regarded as of any assistance at all.

Accordingly, the conclusion which the Inspector came to at paragraph 124 and 125 was, as it seems to me, one reached not in error of law but with a careful and proper regard to the facts, to the authority so far as it was of assistance and upon a proper application of the statute. It follows that in conclusion, this application, despite its subtle and careful nature is one which has to fail and does.

MR ORMONDROYD: My Lord, just before my learned friend addresses you on costs there was one point which your Lordship did not deal with in your judgment, the point about the charge of the football teams to use the field.

MR JUSTICE LANGSTAFF: I took the view that was not of any assistance one way or the other for this reason. It is not I think argued by either of you that it is inconsistent with the land being a public recreation ground. You, for your part could not I think say that those who used it would have any right themselves to apply for registration because plainly their use would be permissive in so far as it was use at all. The way in which the Inspector dealt with that, as it seems to me, was appropriate. It did not seem to be centrally relevant to the interpretation of section 80 which this case depended upon.

MR ORMONDROYD: Yes.

MMR JUSTICE LANGSTAFF: Thank you for mentioning it.

MISS STOCKLEY: My Lord, in those circumstances, in relation to costs I do have an application for the defendant's costs. However I understand the claimant is legally aided and therefore I make an application for the usual order that the appropriate assessment of section 11 of the Access to Justice Act.

MMR JUSTICE LANGSTAFF: Mr Ormondroyd, you want to presumably--

MR ORMONDROYD: That is right detailed community legal funding assessment my Lord.

MR JUSTICE LANGSTAFF: Thank you both for your assistance.

MR ORMONDROYD: There is also a matter of an appeal. I think I need to seek permission from your Lordship to appeal now. My Lord, excuse me for if my thoughts are not the clearest, having just heard your Lordship's judgment that in essence, my Lord this is an important point. Your Lordship's judgment says in terms that this is a reasoning which applies anywhere section 80 is relied on and that is not an uncommon, it is not an uncommon occurrence of village green enquiries for this to be relied upon, and my Lord, yes, I do seek permission to appeal on that basis.

MR JUSTICE LANGSTAFF: Whereas I am happy to accept that the case turns upon an interpretation on section 80 and that there has been no direct authority since Green as to the meaning of section 80, to which I have been referred, I do not think that the case is sufficiently arguable for me to grant leave. If you wish to have leave you have to go to the Court of Appeal for it.

MR ORMONDROYD: My Lord, yes.

MR ORMONDROYD: I am very sorry to have to call you back in. My instructing solicitor pointed out to me, on a practical note, that 21 days to prepare an appellant's notice is going to be scuppered by the Christmas period. I just wanted to ask that we could have 21 days to file the appellant's notice, after receiving a copy of the transcript. My learned friend consents to that application.

MR JUSTICE LANGSTAFF: Yes, very well, 21 days after receipt of the approved judgment.

You will find when the approved judgment comes out that I will say a little more about some of the consequences which have occurred to me and I had meant to include in my judgment but did not that would flow if you are right in your construction, not least that, for instance, people who live in the same household as council tenants, if one ceases to become working class because they have some other job which is not working class, they would then no longer use the land as of right but as a trespasser. That is an example. But I will mention that when I approve the judgment.

MR ORMONDROYD: Yes, thank you.