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Town and village greens - use of land “as of right”?

Applications for registration of land as a town or village green are an ongoing concern to developers. However, a recent Supreme Court case (R (Barkas) v North Yorkshire County Council and another [2014] UKSC 31) has improved the position of councils and developers against local green space campaigners.

Section 15 of the Commons Act 2006 (CA 2006) provides that, subject to certain other conditions, anyone can apply to register land as a town or village green where a "significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years” and they continue to do so at the time of the application. “As of right” means without force, secrecy or permission.

This case related to a field owned by Scarborough Borough Council which was laid out and maintained as "recreation grounds" pursuant to section 12(1) of the Housing Act 1985. The field was surrounded by three housing estates and was used extensively and openly by local inhabitants. In 2007 an application was made to register the field as a town or village green, but the application was rejected on the basis that the use by locals had been “of right” (i.e. the use was sanctioned by the landowner) and not “as of right”.

An application was made for judicial review, but that application failed in both the High Court and Court of Appeal. The Supreme Court agreed with the two lower courts and unanimously dismissed the appeal.

In reaching this conclusion, the Supreme Court importantly considered the earlier House of Lords decision in R (Beresford) v Sunderland City Council [2004]. In that similar case, which should no longer be relied upon, the House of Lords had decided that none of the relevant statutory provisions confirmed a right on the public to use land for recreational use and therefore the public’s use of the land in that case was capable of being “as of right”.  

For more information please contact Annie Scrimshaw.