Local authority statutorily provided recreation grounds are unlikely to be town or village greens.
Barkas v North Yorkshire County Council [23 October 2012] concerned the significant issue of whether local residents were able to register a recreation ground as a town or village green (“TVG”), on the basis they had used it for many years for recreational purposes, despite the fact the ground was provided by a local authority pursuant to its statutory powers. The decision has important implications for local authorities.
Barkas applied under section 15 of the Commons Act 2006 to register a playing field in Whitby as a TVG. That section allows any person to apply to the commons registration authority to register land as a TVG where a significant number of the inhabitants of any locality or any neighbourhood within a locality, have indulged “as of right” in lawful sports and pastimes on the land for at least 20 years and continue to do so at the time of the application.
An independent inspector decided that the local inhabitants’ use for recreational purposes had been “by right” and not “as of right”. What may seem a semantic quibble was crucial to determining the outcome. North Yorkshire County Council accepted the inspector’s conclusion and Barkas’ application was rejected. Barkas lost in the High Court and appealed.
“As of right” does not require that the inhabitants should have a legal right, nor believe themselves to have such a right. The concept of user as of right in section 15 is based on the law of prescription (obtaining a right by long use without force, stealth or owner’s licence). The inhabitants gain the legal right as if of right.
The field was laid out and maintained by the borough council as a recreation ground under housing legislation in connection with housing accommodation provided by them. At the time of Barkas’ application in 2007, the field had been so maintained for 20 years. The inspector had considered that at least until 2003 when the borough council ceased to own the remaining council houses, recreational use of the field by local people was by right and not “as of right”.
The House of Lords, in a case called “Beresford” relating to open space held by a local authority under section 10 of the Open Spaces Act 1906, provided that, if a statute properly construed confers a right on the public to use land for recreational purposes, their use of that land will be by right and not as of right. It considered that it would be difficult to regard recreational users as trespassers acting as of right where land had been appropriated by statute for public recreational purposes.
In this case, the land was not formally appropriated from housing to open space purposes. However, it was acquired under a statutory power for housing purposes, which expressly gave the local authority power to provide a recreation ground in connection with the housing. The field was subsequently maintained as a recreation ground under the legislation.
The Court of Appeal considered that it would be wholly unreal to conclude that the field had not been appropriated for the purpose of public recreation. It was very difficult, if not impossible, to regard the local inhabitants as trespassers, where they indulge in lawful sports and pastimes on land provided by a local authority as a recreation ground pursuant to legislation.
The inhabitants can fairly be said to have a statutory right to use land which has been “appropriated” for lawful sports, because the local authority is under a public law duty to use the land for that purpose which cannot be altered on a whim.
The Court concluded that the field was appropriated for public recreational purposes by the borough council under an express statutory power to provide and maintain it as a recreation ground. Throughout the 20 year period, the local inhabitants indulged in lawful sports on the field by right and not as of right. Therefore, Barkas failed in his application to have the field registered as a TVG.