Barkas v North Yorkshire County Council

For registration as a town or village green under the Commons Act 2006, recreational use must be “as of right” for the statutory period. Use is “by right” where it is pursuant to a statutory right or public-law duty arising from land provided by a local authority for public recreation. Such use cannot found registration. The distinction is not removed by the prescriptive formula nec vi, nec clam, nec precario. A recreation ground acquired for housing and laid out and maintained under statutory housing powers may be appropriated for public recreation in this sense, even without a formal appropriation under the general local-government power.

An application was made under section 15 of the Commons Act 2006 to register the Helredale playing field as a town or village green. An inspector concluded that local inhabitants had used the field for recreation for the relevant 20-year period, but had done so “by right” rather than “as of right”. North Yorkshire County Council rejected the application.

Langstaff J dismissed the appellant’s judicial-review claim: [2011] EWHC 3653 (Admin). The appeal concerned whether a recreation ground provided and maintained by a local authority under statutory housing powers was used by the public pursuant to a legal right, or merely as of right.

The appeal was dismissed. Sullivan LJ gave the leading judgment, with McFarlane and Richards LJJ agreeing.

1. Section 15 of the Commons Act 2006 requires qualifying recreational use to be “as of right”. Use pursuant to a statutory right is “by right” and cannot satisfy that requirement.
2. The distinction recognised in R (Beresford) v Sunderland City Council [2004] 1 AC 889 remained valid. The prescriptive formulation nec vi, nec clam, nec precario, reaffirmed in R (Lewis) v Redcar and Cleveland Borough Council (No. 2) [2010] UKSC 11, did not exhaust the inquiry. The court must also ask whether the use arose from a statutory right.
3. There was no sensible distinction between land held under the statutory trust in section 10 of the Open Spaces Act 1906 and land provided under section 164 of the Public Health Act 1875 for public recreation. In both cases, recreational use was by right.
4. The field had been acquired for housing under sections 72 and 73 of the Housing Act 1936, then laid out and maintained as a recreation ground under section 80(1). The successor provision, section 12 of the Housing Act 1985, applied throughout the relevant period. That statutory framework made it wholly unreal to treat the field as not appropriated for public recreation merely because no formal appropriation under section 122 of the Local Government Act 1972 had occurred.
5. A local authority holding land for a statutory purpose is subject to public-law duties and cannot change its use or close a recreation ground at whim. The wider question whether trespass is necessary to establish use “as of right” was left unresolved.

Because the inhabitants’ use of the field during the relevant period was by right and not as of right, the application for registration failed.

1. Court of Appeal (Civil Division): dismissed the appeal from the Administrative Court on 23 October 2012.
2. Administrative Court: Langstaff J dismissed the judicial-review claim challenging the refusal to register the field as a town or village green: [2011] EWHC 3653 (Admin) .