Barkas, R (on the application of) v North Yorkshire County Council & Scarborough Council

A recreation ground provided and maintained under section 80 of the Housing Act 1936, and laid out for general public use, may lawfully be used by people beyond the council tenants for whose accommodation it was principally provided. Their use is therefore by right, rather than as of right, for town or village green purposes. Use by right or permission does not satisfy section 15 of the Commons Act 2006.

Residents sought judicial review of the refusal by the councils to register Haredale playing field as a town or village green. The inspector accepted that local residents had used the field openly and without force, but concluded that the use was by right because the field had been provided and maintained as a recreation ground under housing legislation. The claimant contended that section 80 of the Housing Act 1936 conferred rights only on tenants of the Western Estate and that other residents used the field as of right. The central issue was whether the statutory housing power authorised a recreation ground laid out for general public use.

1. The application was dismissed. The local authority had not erred in law by adopting the inspector’s conclusion that recreational use of the field was by right rather than as of right.

2. Section 80 of the Housing Act 1936 authorised the provision and maintenance of a recreation ground connected with housing accommodation where it served a beneficial purpose for the relevant housing tenants. The Haredale field satisfied that condition.

3. That statutory purpose did not prevent the authority from providing the same facility for other members of the public. HE Green & Sons v The Minister of Health (No 2) [1948] 1 KB 34 was directly analogous: the fact that statutory amenities also benefited persons outside the principal class did not invalidate the exercise of the power.

4. The field’s layout, entrances and appearance supported the finding that it had been set out as a public recreation ground. The observations in R (on the application of Beresford) v Sunderland County Council [2003] UKHL 60; [2004] 1 AC 889, including Lord Walker’s observations, supported avoiding an artificial distinction between classes of recreational users, although those observations were obiter.

5. Users entitled or permitted to use the land could not rely on that use for registration under section 15 of the Commons Act 2006. The charging of football teams was not central to the statutory interpretation.

Permission to appeal was refused. The time for filing an appellant’s notice was extended to 21 days after receipt of the approved judgment. Costs were subject to the appropriate assessment under section 11 of the Access to Justice Act.

First-instance judicial review proceedings. Permission to appeal was refused, with any application to be made to the Court of Appeal.