R (Beresford) v Sunderland City Council

Use of land for lawful sports and pastimes is not use as of right where the owner has granted permission. Permission need not be express. It may be inferred from overt and contemporaneous acts showing that the owner actively encouraged the use.

Passive acquiescence or toleration remains distinct and will ordinarily be consistent with use as of right. The inquiry is objective. Public ownership may form part of the background, but the decisive question is what the objective circumstances show. Irrelevant considerations will not invalidate a decision where they were immaterial to the outcome.

Residents applied under sections 3 and 13 of the Commons Registration Act 1965 to register the Sports Arena in Washington as a town or village green. The Council’s Licensing Committee refused the application, accepting that the land had been used for lawful sports and pastimes for more than 20 years but finding that the use was pursuant to an implied licence.

On judicial review, Smith J upheld the decision. The appeal concerned whether implied permission could defeat use as of right and whether the Committee had relied on legally irrelevant considerations.

Lord Justice Dyson delivered the leading judgment. Mr Justice Wilson and Lord Justice Latham agreed. The appeal was unanimously dismissed.

1. Under section 22(1) of the Commons Registration Act 1965, use as of right means use nec vi, nec clam, nec precario. Passive acquiescence or toleration is not itself permission and is prima facie compatible with use as of right. Permission is different because it involves a positive act by the owner.

2. There is no reason in principle why permission must be given orally or in writing. It may be inferred from overt and contemporaneous acts. The necessary inference depends on the facts. The laying out and maintenance of sports facilities, perimeter seating and similar conduct could objectively demonstrate active encouragement of recreational use, rather than mere toleration.

3. The Committee was entitled to consider the objective circumstances. Public ownership was relevant background, although of little weight on its own. The site’s adjacency to Princess Anne Park was, at most, peripheral. The Committee did not impermissibly rely on the subjective beliefs of users; the relevant question was what any objective observer knowing the facts would infer.

4. Even if the Committee had taken account of the public ownership or adjacency as irrelevant considerations, those matters were immaterial to the conclusion. The decisive reasoning rested on the seating, maintenance and character of the site. The decision was not shown to be perverse in the Wednesbury sense.

Smith J had correctly answered both issues. The appeal was dismissed. Permission to appeal to the House of Lords was refused, with the relevant assessment and costs directions made as ordered.

1. Court of Appeal: In [2001] EWCA Civ 1218, the Court dismissed the appeal and upheld the decision below.
2. High Court, Administrative Court (Smith J): On judicial review, the court held that implied permission could defeat use as of right and rejected the challenge to the Council’s decision.