Naylor v Essex County Council

Recreational use of land is not use as of right where it is by permission. Where a private landowner accepts public regulation of land and permits access managed by a local authority under statutory powers, public use is ordinarily by permission, even without direct communication from the owner. The authority may communicate permission through its acts. Express communication remains relevant where no public authority intervenes in management. The application for permission to appeal was dismissed because the proposed appeal had no real prospect of success.

This was a renewed application for permission to appeal from a Planning Court decision of His Honour Judge Howell QC dated 28 July 2014. The High Court had dismissed a judicial review challenge to Essex County Council’s refusal to register land at Walton-on-the-Naze as a village green.

The land was privately owned but had been maintained by the district council as a public amenity under statutory powers. The central issue was whether local inhabitants used the land by right or as of right, and whether the private owner had to communicate permission directly to them. The applicant also challenged findings concerning interruption of public use, but those issues arose only if the primary challenge succeeded.

Application dismissed.

1. Permission and use as of right. Recreational access by permission is not use as of right. The principles confirmed in Barcus [2015] AC 195 applied where public access was managed by a local authority under statutory powers.
2. Private ownership. The fact that the land was privately owned did not alter the result. The landowner had accepted public regulation and permitted public access. The local authority’s management and invitations to the public therefore communicated permission on the owner’s behalf.
3. Further communication. Direct communication of permission by the private landowner was unnecessary in those circumstances. The court accepted that earlier observations requiring express communication remained relevant where there was no public-authority intervention in management.
4. Authorities. The general authority of Beresford [2004] 1 AC 886 had been overruled by Barcus. Newhaven Port & Properties Ltd v East Sussex County Council [2015] 2 WLR 601, concerning by-law powers and public use of port land, provided limited assistance, although its wider principle concerning statutory powers could be relevant to the general approach under the Commons Act 2006.
5. Disposition. The specialist judge had correctly rejected the primary challenge. There was no real prospect of success on appeal, and the renewed application for permission to appeal was dismissed.

• Court of Appeal (Civil Division) — renewed application for permission to appeal dismissed: [2015] EWCA Civ 627.
• High Court of Justice, Queen’s Bench Division, Planning Court — on 28 July 2014, His Honour Judge Howell QC dismissed the judicial review challenge to the refusal to register the land as a village green.