R v North Yorkshire County Council and another

Public recreational use of land is not “as of right” where a public authority has lawfully allocated and maintains the land for that use under statutory powers. The public then uses the land “by right”, whether that entitlement is characterised as a public right or a publicly based licence. The prescriptive period required for registration as a town or village green does not run while that statutory allocation continues.

“As of right” means use without force, secrecy or permission. It is the antithesis of use “by right”. Passive acquiescence may support prescription, but communicated permission does not. The decision and reasoning in R (Beresford) v Sunderland City Council [2004] 1 AC 889 should no longer be relied upon.

Scarborough Borough Council owned and maintained a municipal recreation ground which had originally been acquired for housing purposes and laid out as recreation grounds under statutory housing powers. Local inhabitants had used it openly for lawful sports and pastimes for at least 20 years.

An application was made to North Yorkshire County Council to register the land as a town or village green under section 15 of the Commons Act 2006. An inspector concluded that all requirements were satisfied except that the use was “by right”, rather than “as of right”. The registration authority accepted that recommendation.

The appellant’s judicial review claim failed in the Administrative Court, [2011] EWHC 3653 (Admin). The Court of Appeal dismissed her appeal, [2012] EWCA Civ 1373; [2013] 1 WLR 1521. The central issue before the Supreme Court was whether recreational use of land provided and maintained under section 12(1) of the Housing Act 1985, or its statutory predecessors, was use “as of right” for section 15(2)(a) of the 2006 Act.

1. The appeal was dismissed unanimously. Lord Neuberger, with whom Lady Hale, Lord Reed and Lord Hughes agreed, held that local inhabitants used the recreation ground “by right”, rather than “as of right”. Lord Carnwath, with the agreement of Lady Hale, Lord Reed and Lord Hughes, reached the same conclusion and gave additional reasons concerning the statutory context.

2. “As of right” is the antithesis of “of right” or “by right”. It describes use as if pursuant to a right, but without the owner’s permission. The established formulation is nec vi, nec clam, nec precario: use without force, secrecy or permission. The matter is assessed objectively from the perspective of a reasonable landowner. In an ambiguous case, the users’ conduct must communicate both that a right is asserted and the nature of the asserted right.

   Passive tolerance does not amount to permission and does not prevent prescriptive acquisition. A positive communication of agreement does. A person entitled to enter land is not a trespasser merely because the entitlement arises in public law or is conditional or revocable.

3. Section 12(1) of the Housing Act 1985, like section 80(1) of the Housing Act 1936, empowered the authority to provide and maintain land for public recreation. While land is lawfully held for that purpose, members of the public have a statutory entitlement, or publicly based licence, to use it lawfully for recreation. Their use is therefore permissive in the relevant sense. The 20-year period under section 15(2) of the Commons Act 2006 cannot begin unless and until the authority lawfully ceases to hold the land for the statutory recreational purpose.

   This conclusion does not mean that all publicly owned land is immune from village-green registration. Public ownership alone is insufficient. Land not laid out, identified or allocated for public recreation may still be used in a manner asserting village-green rights.

4. R (Beresford) v Sunderland City Council [2004] 1 AC 889 was distinguishable because the House of Lords had treated the land there as neither acquired nor appropriated for a particular recreational purpose. The present land had been allocated for public recreation from the outset.

   The court nevertheless went further. The land in Beresford had itself been lawfully allocated for public recreation under the new-town statutory powers. Its public use was authorised, not merely tolerated. The decision and reasoning in Beresford were wrong and should no longer be relied upon.

1. United Kingdom Supreme Court: The court unanimously dismissed the appeal in R v North Yorkshire County Council and another [2014] UKSC 31. It upheld the conclusion that the recreational use was “by right”.
2. Court of Appeal: The appeal from the Administrative Court was dismissed by Sullivan LJ, Richards LJ and McFarlane LJ: [2012] EWCA Civ 1373; [2013] 1 WLR 1521.
3. Administrative Court: Langstaff J dismissed the application for judicial review: [2011] EWHC 3653 (Admin).
4. Registration authority: North Yorkshire County Council accepted the inspector’s recommendation and rejected the application to register the land under section 15 of the Commons Act 2006.