Goodman, R (on the application of) v Secretary of State for Environment Food & Rural Affairs

"Importance of the link road and employment allocation

15 The highway authority considers the Exhibition Way link road to be an essential part of the highway strategy for the Pinhoe area. Over 600 homes have been approved at Pinhoe Quarry and Ibstock Brickworks in the expectation that it can be delivered. Without the link road, traffic will utilise the sub‑standard Chancel Lane, the narrow Harrington Lane bridge, two mini roundabouts in the centre of Pinhoe that are subject to peak hour congestion and a wider constraint on development north of Pinhoe. A letter from Devon County Council, the Highway Authority, on the importance of the link road is at tab/20 and a letter from the Exeter and Heart of Devon Growth Board at tab/21. If the link road cannot be delivered the financial contribution from Pinhoe Quarry may need to be returned and that from Ibstock Brickworks used for less effective traffic solutions to mitigate the impacts of the development. The Pinhoe Quarry and Ibstock Brickworks sites constitute over one year's housing land supply at the average Core Strategy rate of 600 homes per annum. The sites are an essential component of the Council's five year housing supply and of the supply for the plan period to 2016.

16 The employment allocation of 3 hectares at Eastern Fields represents about 12.5% of the 24 hectares proposed to be allocated in the City in the Site Allocations and Development Management document. It is the only site that is in Council control and therefore potentially available to meet the needs of businesses that may need to be relocated as part of other planning strategies for the City."

"83 ECC argued, however, from evidence of how the application land was used and managed after 1989, that it could be inferred that there had been a re‑appropriation of the land to open space purposes. The evidence showed, it stated, that there had been a nationwide recession in the early 1990s, that there was then no demand from industry to take up any of the 6.6 acres which had been appropriated, and that money to fund the required infrastructure including the new road (paragraph 60 above) was therefore not forthcoming. The possibility that this land would be disposed of for industrial development was 'confined to history' by 1991. The whole of Eastern Fields continued to be managed by the Parks and Open Spaces Committee (or one of its predecessors) and money was spent on it in connection with its use as open space. There was judicial authority (albeit obiter) that appropriation did not need to be express. Within a few years of 1989 the 6.6 acres could be considered to have been re‑appropriated to open space use.

.....

85 The principal points of evidence relevant to what took place after 1989 are as follows. A report to ECC's Property Group (an officer group) in October 1990 noted, concerning the withdrawal of a potential occupier of the 6.6 acres:

'In the current property market, the return required by the Council for the site necessary to meet the infrastructure requirements was too high to be competitive.'.

In 1991, however, the Economic Development Committee noted that:

'The City Council are progressing the development of land, including infrastructure improvements, at Eastern Fields, off Exhibition Way, Pinhoe, for industrial development.'

86 A report to the Property Sub‑committee about the short term lease of the compound on the southern edge of Eastern Fields (paragraph 42 above) in May 1992 referred to the possibility of development of the 6.6 acres becoming feasible. In May 1993 a note to the Property Group referred to the possibility of: 'early redevelopment of this potential industrial site ..... '

87 However, an internal ECC memorandum in 1992, in relation to a small area within the 6.6 acres leased temporarily as a trailer park asked:

'Is the trailer park still public open space?'

Another internal memorandum from 1993, about the same or a nearby piece of land, referred to that area of Eastern Fields as public open space. 1995 documents relating to the lease of the compound just north of the railway bridge referred to the client committee as the Leisure Committee.

88 This evidence seems to show some confusion within ECC about how the land was held in the early 1990s. It is possible, under section 120 (2) of the Local Government Act 1972, for land acquired for one purpose to be used temporarily for another purpose, but in this case there is no evidence of a formal decision to use the 6.6 acres temporarily as open space until it was needed for industrial development.

89 The Exeter Local Plan First Review, adopted in March 2005, stated:

'To the west of the brickworks and to the south‑east of Eastern Fields, some 5.4 hectares [this is more than 6.6 acres, but included land outside Eastern Fields] are proposed for further industrial development ..... The land at Eastern Fields forms part of an open area of green space which is much valued by local residents and is only allocated, exceptionally and specifically to help resolve the access difficulties ..... [i.e. to build a road]. In view of the site's location close to the Exeter Arena athletics stadium the land could alternatively be developed for indoor leisure.'

90 Shortly after the adoption of this Plan, in 2006 and 2007, ECC spent several thousand pounds planting and maintaining trees on Eastern Fields (see paragraph 11 above). A good proportion of these trees is within the 6.6 acre area appropriated in 1989.

91 In 2009 metalled cycle and pedestrian paths (as described in paragraph 13 above) were created following a proposal by Devon County Council made in connection with the provision of a cycle route network for Exeter. The east‑west path and part of the north‑south path are within the 6.6 acres.

92 Since appropriation in 1989 these 6.6 acres of land have been managed, along with the remainder of the application land, by the same department – Parks and Open Spaces – used by the public in the same way (apart from the compound) and maintained in the same way. Licensed activities, such as funfairs and circuses, continued, mostly within the southern third of the site. In ECC's current Asset Register, under the heading 'type', Eastern Fields is categorised as 'community assets' rather than 'open space.'

93 The evidence from the 1990s and the first decade of the 21st century is not supportive, I consider, of the view that the application land was being held by ECC as industrial development land while temporarily being used as open space. Spending significant amounts of money on permanent facilities inconsistent with future industrial development is not, in my view, reconcilable with temporary open space use; neither is the Local Plan's description of it in 2005 as a valued area of green space. The applicants mentioned the failure to list Eastern Fields as 'open space' in the Asset Register, without asserting in what way this was thought to be significant.

94 It is clear that there was no formal re‑appropriation of the 6.6 acres to open space use; what evidence there is suggests that the 1989 appropriation was gradually forgotten within ECC. The objector, however, argued that a local authority could exercise its power of appropriation by implication and cited the judgment in Oxy‑Electric v Zainuddin (1990). T Cullen QC, acting as a judge stated:

'As far as the exercise of statutory powers is concerned, it is common ground that the local authority can only change the purpose for which it holds land under a statutory power of appropriation. That must be so whether it is application, appropriation or any other term. Here one is looking for the exercise of a statutory power by a local authority. I am quite prepared to accept that if the local authority deal with the land in such a manner that it could only have dealt with it lawfully if it had made an appropriation, then the resolution need not record such appropriation.'.

ECC accepted that this comment was obiter, but noted that a number of expert practitioners in the field of town and village green registration had adopted this approach in reports to registration authorities.

.....

96 The applicants did not challenge the factual basis on which ECC based its argument for an implied re‑appropriation. Their contention was that there could be no inferred appropriation in these circumstances. The application land continued, from 1989 to the present day, as land which was appropriated to industrial development. They cited in support the judgment of Sullivan LJ in Barkas v North Yorkshire County Council [2012] EWCA Civ 1373. Sullivan LJ stated at paragraph 43:

'While there is no general exclusion of local authorities from the scope of the 2006 Act [he referred here to Lord Walker's comments in Beresford], local authorities holding land for a particular statutory purpose are not in the same position as private landowners who may, subject to planning controls, change the use of their land at will. A local authority holding land for a particular statutory purpose may not use it for any other purpose unless it has been formally appropriated to that purpose, and if it simply ceases to use land for the statutory purpose for which it is held it must be able to justify its decision to do so on public law grounds. Unlike a private landowner it may not lawfully close a recreation ground or prevent members of the public from using it for recreation, on a whim.'

97 It seems to me that this part of the judgment of Sullivan LJ should be put into context. Earlier in his judgment he commented on their Lordships' opinions in the case of Beresford (above paragraph 69). In that case land was made available as a sports arena under the New Towns Act 1965. Sullivan LJ said, at paragraph 36 of Barkas:

'I confess that I find it difficult to understand why the statutory approval of the Corporation's New Town Plan 1973 by the Minister which had the effect of granting planning permission for the development of the land as 'parkland/open space/playing field', when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an 'appropriation' of the land as recreational open space in the sense in which Lord Walker used that word.'.

It is clear from that and other statements that Sullivan LJ was satisfied that there could be an appropriation of land without the formalities of section 122 of the Local Government Act 1972 (above, paragraph 77). Paragraph 43 of his judgment, cited by the applicants was concerned with the differences between private landowners and local authorities as landowners, and the fact that private owners could, subject to planning controls, change the use of their land at will. It does not contradict, it seems to me, the idea of implied appropriation; it confirms that there must be justification for a change of use of land, but is not authority for stating that such a justification could not arise from an inference that appropriation had

taken place.

98 I conclude from the available evidence that it would be right to consider that the 6.6 acres appropriated in 1989, together with the small part of the railway sidings land within the application land, had been re‑appropriated to open space use by soon after the beginning of the 21st century; not as early as ECC argued for, but by the time trees were planted in 2006/7. An inferred re‑appropriation would render ECC's dealings with the land lawful, when they might otherwise not have been so. I conclude further that the use by local inhabitants of this land for lawful sports and pastimes would therefore have been by right for a substantial part of the 20 year period.

99 These conclusions are somewhat tentative; ECC assumed that the planting of a substantial quantity of trees on part of the 6.6 acres, and the provision of a cycle track across it, would have been unlawful had the land remained appropriated to industrial development, but the question of whether, in those circumstances, its actions might have been considered careless rather than unlawful was not canvassed.

100 It is because of the tentative nature of my conclusions that I go on to consider the alternative argument put forward by ECC, that use of the application land by local inhabitants during the 20 year period was by its licence."

"102 The objector's argument in brief is this. During (and before) the relevant 20‑year period, ECC licensed various activities, such as fairs, which took place on Eastern Fields, and to which the public was admitted on payment. It licensed other activities, such as circuses or athletic events, which resulted in the exclusion of the public from significant parts of Eastern Fields for various periods, often days at a time. It could be concluded from this that the landowner's conduct in relation to the land was sufficient to bring home to reasonable people that they were on the land by virtue of his implied consent.

.....

105 Some of the activities proposed by ECC as suggesting that licensed use by local inhabitants should be inferred were, on their own, trivial in the extreme. One was a 5000‑metre race with an unknown but presumably quite small number of competitors which took place on one occasion as part of the Meteorological Office annual sports day. On the other hand some events, such as circuses, would be on site for up to 5 days, and funfairs could be on Eastern Fields for a couple of weeks or more. Evidence was presented from which I am satisfied that on at least eleven occasions in the period 1991 to 2011 circuses visited, and that the funfair was there on at least three occasions. Admission to the fairground rides or circus big top was by payment.

106 I accept the evidence of some of the applicants' witnesses that the areas around the various rides and stalls, and the areas around the circus tents, were accessible, even if access to these areas by non‑participants was not encouraged. It is nevertheless clear that there were areas that were not accessible because of licensed activities for considerable periods, amounting to several weeks over the 20 year period.

107 ECC's argument (paragraph 100 above) was based on the application of two judgments to the facts. The first case was that of Beresford (see above at 70 and 71). Lord Bingham's opinion (at paragraph 5) was:

'I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old‑fashioned formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.'

Lord Walker stated (at paragraph 83):

'In the Court of Appeal Dyson LJ considered that implied permission could defeat a claim to user as of right, as Smith J had held at first instance. I can agree with that as a general proposition, provided that the permission is implied by (or inferred from) overt conduct of the landowner, such as making a charge for admission, or asserting his title by the occasional closure of the land to all‑comers. Such actions have an impact on members of the public and demonstrate that their access to the land, when they do have access, depends on the landowner's permission.'

108 From this it may be concluded at least that if an owner of land excluded the public from the whole of it for a period or periods, as described above, then a licence might, depending on the circumstances, be implied. The applicants did not disagree with that proposition. In the case of R (on the application of Mann) v Somerset County Council [2012] EWHC 814 (Admin), also concerned with an application to register land as town or village green, however, the court clarified the position with regard to partial exclusion. In Mann, the owner licensed the holding of a beer festival on a fairly small part of the land on a few occasions during the 20‑year period.

109 It was held by Owen J (sic) in the High Court in the Mann case (at paragraph 71) that:

'From these observations [of their Lordships in the Beresford case], which I take as authoritative guidance on conduct by an owner which may count as an overt act or as a relevant or demonstrable circumstance sufficient in law to allow an inference of permission, it appears that the owner must make it clear that the public's use of the land is with his permission and that that may be shown by excluding the public on occasional days (per Lord Bingham, para 5; and see para 79 per Lord Walker); he must do something on his land to show that he is exercising his rights (as owner) over his land and that the public's use is by his leave (para 6); there must be a positive act by [the] owner qua public though a notice is not necessary provided the circumstances relied on allow the inference to be drawn (para 59); implied consent by taking a charge for entry or similar overt act communicated to the public is sufficient without the need for express explanation or notice (para 75); such conduct need only occur from time to time (I should add, perhaps once only during the period under scrutiny) (para 76); such conduct will be expected to have an impact on the public and show that when the public have access (I should add, to all or part of the land) they do so with the leave or permission of the owner (para 83).'

Owen J (sic) held further (at paragraph 73) that:

'In the absence of clear reason to suppose otherwise an act by the owner relating to part of the land, as occurred in this case, may be taken to be referable to the whole of the land.'

111 The applicants argued that there was no overt or unequivocal act which demonstrated, either by exclusion or other act, that use of the land was by permission. The decision in Mann, they asserted, was an aberration. The High Court decided that the inspector in that case was entitled to come to the decision he did and the judgment applied only to the facts in that case, so that Mann was not a persuasive authority.

112 I do not accept that the decision in Mann was an aberration. I was given no good reason to conclude that the judgment of Owen J in that case did not express the law as it is or that it does not have wider application than to the particular facts of that case. If, contrary to what I have already concluded, the application land was held for planning purposes, or industrial development purposes, it seems to me reasonable to conclude that the temporary licensing of the activities that took place there over several days would have alerted a reasonable person to the fact that he or she was using the land, when he or she could access it, by permission."

"15 Registration of greens

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), (3) or (4) applies.

This subsection applies where —

"120 Acquisition of land by agreement by principal councils

For the purposes of —

A principal council may acquire by agreement any land for any purpose for which they are authorised by this or any other enactment to acquire land, notwithstanding that the land is not immediately required for that purpose; and, until it is required for the purpose for which it was acquired, any land acquired under this subsection may be used for the purpose of any of the council's functions.

Subject to the following provisions of this section, a principal council may appropriate for any purpose 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.

"One further point remains. What quality of user 'for purposes of public recreation' is required before the land is 'open space' for the purposes of Section 123 (2A) of the Local Government Act 1972 as amended [which is a like provision to Section 122 (2A) in relation to disposal]? Mr Whybrow contends that it must be as of right, ie that user under a bare licence will not suffice. He suggests that any other construction would be absurd and inconvenient. I do not agree. Section 123 (2A) appears to have been enacted to protect the interests of those lawfully using open spaces. A bare licensee has no interest in land, but so long as his licence exists he has something which he can enjoy. It can only be brought to an end on giving him reasonable notice. In many cases such notice need only be very short, but it is possible to envisage circumstances in which a significant period would be required. Where a licence has been given, there is no hardship or absurdity in a council having to choose between postponing its disposal of the land until such notice has been given and expired and, alternatively, advertising the intended disposal in the way required."

"Mr Carnwath, who appeared for the defendants, said that appropriation is not a technical term. It merely means that the council in fact applied the land for such purposes. Mr Roots, who appeared for the plaintiff, said that, as appropriation carried out by the local authority can only be carried out by it under a statutory power, it must be a conscious decision or it must be an implicit step in a conscious decision. I was referred to Dowty v Wolverhampton Corporation (No 2) [1976] Ch 13, and Edmonds v Stockport Metropolitan Council 1 [1990] 1 PLR 1. In each of those cases, there was an express appropriation for 'planning purposes', but only for planning purposes. It follows from those cases, that there need not be a specific purpose mentioned in the local authority's resolution. But the defendants go further, they say that there need be no express appropriation nor an implicit appropriation. One simply looks at the facts to see if the local authority applied the land for purposes which could be planning purposes under Section 133. As far as the exercise of statutory powers is concerned, it is common ground that the local authority can only change the purpose for which it holds land under a statutory power of appropriation. That must be so whether it is application, appropriation or any other term. Here one is looking for the exercise of a statutory power by the local authority. I am quite prepared to accept that, if the local authority dealt with the land in such a manner that it could only have dealt with it lawfully if it had made an appropriation, then the resolution need not record such appropriation."

"44 That being so, in my judgment the decision of the CRA, based as it ultimately was, on the reasoning and recommendations of the inspector, must be viewed as flawed sufficient to justify quashing the decision for the reasons advanced by Mr George (which is why I have set them out fully above). Equally I am not persuaded by Mr Laurence's alternative argument based on informal appropriation. This depended on a finding that the land was not acquired or held for an inconsistent purpose, something the inspector seems to have assumed ('in practice') rather than found as a fact (or in law). Reliance on Doncaster does not assist for there the assumption that the local authority could dedicate the land to public use was a concession made by both sides and was not fully argued."

"39 .....

.....

It was insufficient merely to state that the land was 'in practice' held for a purpose which was not inconsistent with the new, informally appropriated, purpose. To be a valid appropriation to the stated use, the local authority must have concluded that the land subject to the appropriation was 'not required' for its existing purposes (see Local Government Act 1933, ss 163, 165). No such conclusion is recorded in the 1964 Deed or elsewhere nor does the 1964 Deed declare it was appropriating the land to a different purpose. Moreover, to take effect as an appropriation from one use to another the formal statutory mechanisms of the Local Government Act 1933 needed to be complied with and ministerial approval (at that time) was needed. It was apparent none of the formalities had been observed. All this is unsurprising given the inspector was relying on and treating the 1964 Deed as an informal process."

"80 The powers of the local authority under this Part of the Act to provide housing accommodation shall include a power to provide and maintain with the consent of the Minister and a desire 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."

"35 Is the position any different when the recreation ground is provided under section 80 of the 1936 Act? Such land is not formally appropriated under section 122 of the 1972 Act from housing to open space purposes. It is acquired, and continues to be held by the local authority, for housing purposes, as are the shops or other buildings, eg community centres, which serve a beneficial purpose in connection with the requirements of those living in the housing: see section 80 (1) (paragraph 6 above). Thus, unlike open space provided under section 10 of the 1906 Act or section 164 of the 1875 Act, there is no need to appropriate a recreation ground provided under section 80 to housing purposes if, as in the present case, the local authority wishes to build houses on the recreation ground.

36 In these circumstances, there is much force in Mr Edwards' submission that the statutory framework under which the Field is provided is analogous to the 'very wide powers' under the New Towns Act 1965 under which the land was made available as a sports arena in Beresford. Unfortunately, there is no analysis in Beresford of the powers conferred by the New Towns Act. I confess that I find it difficult to understand why the statutory approval of the Corporation's New Town Plan 1973 by the Minister, which had the effect of granting planning permission for the development of the land as 'parkland/open space/playing field', when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an 'appropriation' of the land as recreational open space in the sense in which Lord Walker used that word. Lord Bingham found it unnecessary to review the statutory provisions because, on the facts, he considered that none of them could be relied on to confer a legal right to use the land for indulgence in lawful sports and pastimes (paragraph 9). Lord Rodger [at 62] said that, for the reasons given by Lord Walker, neither the designation of the land as 'open space' in the New Town Plan nor any of the statutes conferred any right to use the sports arena (paragraph 62). Lord Walker emphasised [at 89 (a)] the 'very wide powers' in the New Towns Act, the fact that the land was not acquired for any particular purpose, and the fact that the Corporation was not under an obligation to appropriate the land for any specific purpose, such as housing, public buildings or open space (paragraph 89 (a), see paragraph 25 above).

37 Like Lord Scott, I am uneasy about the conclusion that the House of Lords reached in Beresford, but we are bound by it. However, my understanding of the decision is that it turned very much upon the particular facts in that case, and the House of Lords deliberately left open the wider question: when will user by the inhabitants of a locality be pursuant to a statutory right to do so and not as of right? We are concerned with the provision of a recreation ground by a local authority under a different statutory framework. On the Inspector's findings of fact the Field was acquired under a statutory power for a specific purpose: housing. While the UDC was not under any obligation to lay out the land as a recreation ground, the enabling enactment expressly gave it power, with the consent of the Minister, to provide a recreation ground in connection with the housing. The Minister's consent having been obtained and the Field having been laid out and thereafter maintained as a recreation ground initially under that express statutory power, and thereafter under its successor, section 12 of the 1985 Act, it seems to me that it would be wholly unreal to conclude that the Field had not been 'appropriated for the purpose of public recreation' in the sense in which Lord Walker referred to 'appropriation' in paragraph 87 of his opinion in Beresford."

"42 It is 'very difficult', if not impossible, to regard the local inhabitants who indulge in lawful sports and pastimes on land which is provided by a local authority as open space under the 1906 Act, as public walks and pleasure grounds under section 164 of the 1875 Act, or as a recreation ground under section 80 of the 1936 Act, as trespassers. The underlying difficulty may well be the need to apply private law concepts in a public law context. The former focuses upon rights, the latter upon duties. Most statutes dealing with local authorities do not expressly confer rights on members of the public, they tend to impose duties upon the authority and thereby confer rights that are enforceable as a matter of public law. The local inhabitants can fairly be said to have a statutory right to use land which has been 'appropriated' for lawful sports and pastimes because the local authority, having exercised its statutory powers to make the land available to the public for that purpose, is under a public law duty to use the land for that purpose until such time as it is formally appropriated to some other statutory purpose under section 122, or in the case of a recreation ground provided and maintained under Housing Act powers (now section 12 of the 1985 Act), a formal decision is taken that it shall be used for some other housing purpose.

43 While there is no general exclusion of local authorities from the scope of the 2006 Act (see the final sentence of the opinion of Lord Walker in Beresford, paragraph 24 above), local authorities holding land for a particular statutory purpose are not in the same position as private landowners who may, subject to planning controls, change the use of their land at will. A local authority holding land for a particular statutory purpose may not use it for any other purpose unless it has been formally appropriated to that purpose, and if it simply ceases to use land for the statutory purpose for which it is held it must be able to justify its decision to do so on public law grounds. Unlike a private landowner it may not lawfully close a recreation ground or prevent members of the public from using it for recreation, on a whim."

"21 In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12 (1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land 'by right' and not as trespassers, so that no question of user 'as of right' can arise. In Sunningwell [[2000] 1 AC 335] at pp 352H‑353A, Lord Hoffmann indicated that whether user was 'as of right' should be judged by 'how the matter would have appeared to the owner of the land', a question which must, I should add, be assessed objectively. In the present case, it is, I think, plain that a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12 (1) of the 1985 Act and its statutory predecessors.

22 It is true that this case does not involve the grant of a right in private law, which is the normal issue where the question whether a use is precario arises. Indeed, the fact that the right alleged in this case is not a conventional private law right, but a public law right, was rightly acknowledged by Ms Lieven. Thus, it is a right principally enforceable by public rather than by private law proceedings. It is also a right which is clearly conditional on the Council continuing to devote the Field to the purpose identified in section 12 (1) of the 1985 Act (and it is unnecessary for present purposes to go into the question of what steps the Council would have to take to remove the Field from the ambit of the section). Accordingly, the right alleged by the Council to be enjoyed by members of the public over the Field is not precisely analogous to a public or private right of way. However, I do not see any reason in terms of legal principle or public policy why that should make a difference. The basic point is that members of the public are entitled to go onto and use the land – provided they use it for the stipulated purpose in section 12 (1), namely for recreation, and that they do so in a lawful manner.

23 It is worth expanding on this. Section 12 (1) of the 1985 Act and its statutory predecessors bestow a power on a local (housing) authority to devote land such as the Field for public recreational use (albeit subject to the consent of the Minister or Secretary of State), at any rate until the land is removed from the ambit of that section. Where land is held for that purpose, and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct. Of course, a local authority would be entitled to place conditions on such use – such as on the times of day the land could be accessed or used, the type of sports which could be played and when and where, and the terms on which children or dogs could come onto the land. Similarly, the local authority would clearly be entitled to withdraw the licence permanently or temporarily. Thus, if and when it lawfully is able, and decides, to devote the land to some other statutorily permitted use, the local authority may permanently withdraw the licence; and if, for instance, when the land is still held under section 12 (1), the local authority wants to hold a midsummer fair to which the public will be charged an entrance fee, it could temporarily withdraw the licence.

24 I agree with Lord Carnwath [JSC] that, where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land 'as of right', simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their allocation decision if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights."

"5 I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old‑fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use."

"83 In the Court of Appeal Dyson LJ considered that implied permission could defeat a claim to user as of right, as Smith J had held at first instance. I can agree with that as a general proposition, provided that the permission is implied by (or inferred from) overt conduct of the landowner, such as making a charge for admission, or asserting his title by the occasional closure of the land to all‑comers. Such actions have an impact on members of the public and demonstrate that their access to the land, when they do have access, depends on the landowner's permission. But I cannot agree that there was any evidence of overt acts (on the part of the City Council or its predecessors) justifying the conclusion of an implied licence in this case."

"71 From these observations, which I take as authoritative guidance on conduct by an owner which may count as an overt act or as a relevant or demonstrable circumstance sufficient in law to allow an inference of permission, it appears that the owner must make it clear that the public's use of the land is with his permission and that that may be shown by excluding the public on occasional days (per Lord Bingham, para 5; and see para 79 per Lord Walker); he must do something on his land to show that he is exercising his rights (as owner) over his land and that the public's use is by his leave (para 6); there must be a positive act by owner qua public though a notice is not necessary provided the circumstances relied on allows the inference to be drawn (para 59); implied consent by taking a charge for entry or similar overt act communicated to the public is sufficient without the need for express explanation or notice (para 75); such conduct need only occur from time to time (I should add, perhaps once only during the period under scrutiny) (para 76); such conduct will be expected to have an impact on the public and show that when the public have access (I should add, to all or part of the land) they do so with the leave or permission of the owner (para 83).

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73 It was common ground that the acts of the owner in question in holding such festivals constituted an act of exclusion albeit the argument concerned the effect of an exclusion which affected part only of the land and not of the whole. Nonetheless, there was a manifest act of exclusion by the owner. In the absence of clear reason to suppose otherwise an act by the owner relating to part of the land, as occurred in this case, may be taken to be referable to the whole of the land.

74 In the present case the land in question was privately owned and was known (or must be taken to have known) to be so by the local inhabitants. There was no act of encouragement to them by the owner to use the land. Nothing was done by the owner which could, or has been suggested did, reinforce any impression which the local inhabitants now assert that their use was as of right. On the contrary, the owners have demonstrated by positive acts from time to time that, as owners, they were exercising and retaining their rights over their land by excluding all comers, subject to payment of an entrance charge. The owners acted in this way without regard to the local inhabitants' views and without consultation or so much as a 'by your leave'. They conducted themselves as an active landowner and, as the local inhabitants might reasonably be taken to have appreciated, as though the local inhabitants had no right over the land.

75 It is difficult to see, viewed objectively, how the local inhabitants could not have appreciated that in continuing to use the land they were doing so with the (implied) permission of the owner. The claimant's arguments seriously undervalue the nature and quality of the owner's acts and fail to recognize the significance of the exercise of the owner's right to exclude, albeit expressly over part of the land and on occasions only.

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91 It follows that careful consideration must also be given to the nature and effect of the owner's conduct relating to his use of the land during (any date within) the period in question. This case concerns an owner who evidently maintained a commercial interest in making substantial use of his land as and when he wished. A landowner is not to be lightly deprived of his exclusive right to use his land, especially in a case where it is proved or admitted that the owner has made use of his land during the period in question and where that use could not reasonably be regarded (or dismissed) as insignificant and involved an act of exclusion. It is universally recognized that the (mere) erecting of notices offers little or no protection to the owner in respect of his maintaining exclusive right to use his land. The law of England and Wales does not expect or require an owner who wishes to maintain his exclusive right to use his own land to erect and maintain barriers or fencing to prevent others from going onto the land. Equally, the law does expect an owner to resist that which appears to be use of his land by others and the assertion of a right to do so. In those circumstances the owner is expected 'to do something'. In this case the owner 'did something', as owner, which showed to the reasonable onlooker that the right to exclude was being exercised. The significance of the owner's use of the land could not reasonably have been mistaken by the local inhabitants at the time. In my judgment, it was not necessary for the owners to do more than they did. The inspector's conclusion at paragraph 2.40 of the supplemental report was open to him in the circumstances."