R (on the application of Barkas) v North Yorkshire County Council and another  UKSC 31
It is well known that one way in which members of local communities try to protect land they use from development is to apply to the local authority to register the land as a town or village green ("TVG").
Registering a TVG
Under s. 15 of the Commons Act 2006,
(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), (3) or (4) 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.
In simple terms, the applicants must demonstrate that a significant number of local people have used the land in question as of right for at least 20 years.
“As of right” reflects the principles central to proving prescriptive rights – where those rights are enjoyed, “nec vi, nec clam, nec precario” or “without force, secrecy or permission”. If there is permission to use land, then this will be fatal to any application for registering the land as a TVG
Some applications for registration of green space are made over land owned by local councils. It is therefore unsurprising that cash-strapped councils will wish to hold and dispose of their land without the incumberance of registration which prevents development and devalues the land.
In the case of R (on the application of Barkas) v North Yorkshire County Council and another , the Supreme Court considered whether when land is provided and maintained by a local authority pursuant to section 12 (1) of the Housing Act 1985 or its statutory predecessors, was the use of that land by the public for recreational purposes “as of right” within the meaning of 15 (2) (a) of the Commons Act 2006 - or was its use by implied licence and therefore permissive ("by right" as opposed to "as of right")?
The land in question was a playing field in Whitby – part of a larger area purchased under the provisions in the Housing Act 1936 for the purpose of developing the land for housing. The council then developed the site leaving 2 hectares of fields as a maintained recreation ground under s 80 (1) of the 1936 act – effectively for the use of those occupying the estates. The Act was subsequently repealed and section 80 was reenacted in the Housing Act 1985.
In 2007, campaigners applied to register the field. An inquiry was held but it was decided that although all the other necessary criteria were met for the registration as a TVG, use of the field had been permissive or "by right" and therefore not “as of right”. The Council therefore rejected the application for registration and Ms Christine Barkas applied for judicial review of the decision.
At all stages in the long process – from inquiry to judicial review at the High Court and subsequent appeal to the Court of Appeal and then the Supreme Court, legal arguments had centred on the meaning of “as of right” and whether the statutory context for the purchase and maintenance of the land meant that the land was used permissively or “by right” rather than “as of right”.
Lord Neuberger, who delivered the leading judgment in the Supreme Court, agreed with the council that:
"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” (para 21).
The conclusion was, therefore, that the council’s earlier decision to reject the application for TVG status had been correct.
In order to determine whether the council had been correct in its submissions that the statutory context for the provision of recreational land made the local use of the land permissive, the Supreme Court needed at least to distinguish the case on the facts from the earlier case of R (Beresford) v Sunderland City Council  1 AC 889.
In Beresford, land in ownership of the council had been used by local people even though the council earmarked the land for a considerable number of years for use as a sports arena. The land had not been appropriated in the same way as under the Housing Act by the council in Barkas, and the House of Lords had decided that “encouraging” public use by providing park benches and mowing the grass had not meant that rights of local people had been permissive or “by right”, and the House of Lords therefore found that the use was “as of right” and that it fulfilled the requirements for a TVG.
However, in Barkas, rather than simply distinguishing Beresford, the Supreme Court went further, leaving Lord Carnwath to give what Lord Neuberger described as the “quietus” to the earlier case.
Lord Carnwath began by examining the origins of the principles for registration under the predecessor legislation to the 2006 Act – the Commons Act 1965 – seeing no evidence “of any intention to include within its ambit other forms of public open space, owned and managed by public authorities under statutes such as the Open Spaces Act 1906” (para 54).
He goes on to examine the context of the use of the land in Beresford, quoting with approval the main arguments from the local authority in rejecting the TVG application and the subsequent High Court decision, that the land had been under public ownership, and the council had effectively granted itself planning permission in 1973. The acts of encouragement by the local authority which Lord Bingham in Beresford had suggested were not inconsistent with use “as of right” were, on the contrary, the signature of permissive use. Acts of encouragement, “where they are acts of a public authority. . .lend force to the alternative inference that they are done under other statutory powers” (para 82).
In all then, Beresford had been wrongly decided. In that case, the council had in fact applied its own land for the purpose of public recreation – and the evidence of the care taken to maintain the land was in fact good evidence of a licence for public use.
Consistency and Predictability
The overruling of Beresford introduces some consistency and predictability to decision making where applications have been made for TVG status over council land. But it also appears to mean that where a council owns land it will be more difficult for applicants for registration in such circumstances to prove that use was not permissive or by way of implied licence.
Despite Lord Carnwath’s obiter comment that fears that land under public ownership could never be subject to modern village green rights were “misplaced” (para 76), the case will no doubt now be relied on by local authorities asked to decide on applications for registration of their own land – even if there is no appropriation or application for a particular statutory purpose.
This article was written by Justin Neal, one of our environmental law experts. It was originally published in Environmental Law Monthly in June 2014 and is reproduced here with their permission.