Beresford, R (on the application of) v. City of Sunderland

The House considered whether land known as the Sports Arena should be registered as a "town or village green" under section 22 of the Commons Registration Act 1965. The statutory test requires the recreational use by inhabitants to have been "as of right" (nec vi, nec clam, nec precario) for at least 20 years. The court held that use pursuant to an implied licence is not inevitably inconsistent with use "as of right": the question is one of objective fact and degree. On the facts (public ownership; mowing; provision of benches) the conduct of the successive public owners did not show that the use was merely precario; instead it supported the inference that the public used the land as of right. The House therefore allowed the appeal and ordered registration.

The applicants sought registration of a grassed area known as the Sports Arena in Washington as a town or village green under section 22(1)(c) of the Commons Registration Act 1965, relying on at least 20 years' recreational use by inhabitants. Sunderland City Council, as registration authority, refused on the ground that the use had been by implied licence and therefore precario. The appellant obtained judicial review; Smith J dismissed the claim ([2001] 1 WLR 1327). The Court of Appeal ([2001] EWCA Civ 1218; [2002] QB 874) upheld that decision. The appeal reached the House of Lords.

The issues before the House were:

• whether user "as of right" requires belief in a legal right or excludes user by licence;
• whether an implied licence can suffice to render user precario; and
• whether any statutory scheme applicable to public/open space land gave the public a statutory right to use the land (which would negate the "as of right" analysis because such use would be "of right").

The court reviewed the established meaning of "as of right" (nec vi, nec clam, nec precario) and prior authorities, notably R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335. The House accepted that an implication of licence can in principle be drawn from conduct, but emphasised that mere inaction or tolerance by an owner is not the same as a licence. On the facts the benches and grass-cutting were explicable as the actions of public authorities maintaining an amenity for public use rather than as evidence of a revocable private licence. The House also considered, but did not find it necessary finally to decide, whether statutory regimes (New Towns Act provisions, Local Government Act 1972, Open Spaces Act 1906) created a distinct statutory right of access on the facts; the court concluded none of them conferred a legal right to use the Sports Arena on the facts found. The House allowed the appeal and directed registration as a town or village green.

Appeal allowed. The House held that although an implied licence can in principle render user precario, that is an evidential matter; on the facts (public ownership, mowing and provision of benches, absence of signs that permission was intended to be temporary) the inhabitants' user was "as of right" within section 22(1) of the Commons Registration Act 1965. No statutory right to use the land was found to displace that conclusion.

Judicial review refused by Smith J ([2001] 1 WLR 1327). Appeal to Court of Appeal dismissed: [2001] EWCA Civ 1218; reported [2002] QB 874. Further appeal to the House of Lords allowed: [2003] UKHL 60.