Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant)

Use of land for lawful sports and pastimes is “as of right” where it is open, peaceable and without the landowner’s revocable permission. The users need neither possess nor believe that they possess an existing legal right.

An implied permission can prevent prescriptive use, but it must arise from overt conduct which communicates that use depends on the owner’s leave. Mere acquiescence, maintenance or encouragement does not suffice. Mowing grass and providing recreational facilities are equivocal and do not, without more, convert qualifying public use into licensed use.

Use under an existing statutory right is “of right”, rather than “as of right”. It cannot found registration under section 22(1) of the Commons Registration Act 1965.

Local inhabitants had used the publicly owned Sports Arena in Washington for lawful sports and pastimes for more than 20 years. Sunderland City Council refused an application to register the land as a town or village green under section 22(1) of the Commons Registration Act 1965. It found that the use occurred under an implied licence evidenced by public ownership, maintenance and recreational facilities.

Smith J refused judicial review: [2001] 1 WLR 1327. The Court of Appeal dismissed the appeal: [2001] EWCA Civ 1218; [2002] QB 874. The House considered whether the use was “as of right”, whether the owners’ conduct communicated revocable permission, and whether any statutory provision instead conferred a legal right to use the land.

1. Appeal allowed unanimously. The council’s decision was quashed. Lord Bingham, Lord Hutton, Lord Scott, Lord Rodger and Lord Walker agreed that the established recreational use was “as of right” and entitled the applicant to registration under section 22(1) of the Commons Registration Act 1965.
2. Per Lord Bingham, Lord Rodger and Lord Walker, “as of right” means use which is nec vi, nec clam, nec precario: without force, secrecy or the landowner’s licence. Users need neither possess nor believe that they possess an existing legal right. Conversely, use under an existing statutory entitlement is “of right” and cannot satisfy the statutory expression.
3. Per Lord Bingham, Lord Rodger and Lord Walker, an implied revocable licence is possible in principle. It requires a positive or overt act which objectively communicates to users that their access depends upon the owner’s permission. Charging for entry, occasionally closing the land or otherwise asserting a right to exclude may have that effect. Silent acquiescence cannot do so, because acquiescence is the foundation of prescription rather than permission.
4. Per Lord Bingham, Lord Rodger and Lord Walker, mowing the grass, retaining benches and generally encouraging recreation did not communicate revocable permission. Those acts were equivocal and consistent with acquiescence in public use as of right. Public ownership did not alter that conclusion. There was no act regulating use or informing inhabitants that their enjoyment depended upon leave which could be withdrawn.
5. Lord Scott agreed in the result. He considered that the effect of permission depends upon its nature, objectively assessed. Permission of a sufficiently permanent or dedicatory character may reinforce the appearance of use as of right. The proposition that all permitted use is necessarily precarious was too rigid.
6. Per Lord Rodger and Lord Walker, no statutory trust, appropriation or other statutory entitlement to recreational use was established on the agreed facts. Lord Scott raised, but left undecided, wider questions concerning local-authority open space, statutory powers of appropriation and disposal, and their possible priority over town or village green status.

1. House of Lords: The appeal was allowed unanimously and the council’s refusal to register the land was quashed: [2003] UKHL 60.
2. Court of Appeal: The appeal was dismissed because an implied permission could defeat use “as of right” and the council was entitled to infer such permission: [2001] EWCA Civ 1218; [2002] QB 874.
3. High Court: Smith J refused judicial review, accepting that public ownership and the circumstances of use supported an implied permission: [2001] 1 WLR 1327.
4. Registration authority: Sunderland City Council refused registration under the Commons Registration Act 1965 because it regarded the recreational use as licensed rather than “as of right”.