Barkas (Appellant) North Yorkshire County Council (Respondent) Scarborough Borough Council (Interested Party) (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice McFarlane,Lord Justice Richards |
| Judgment Date | 23 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1373 |
| Docket Number | Case No: C1/2012/0297 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2012 |
[2012] EWCA Civ 1373
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE LANGSTAFF
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Sullivan
and
Lord Justice Mcfarlane
Case No: C1/2012/0297
Douglas Edwards QC (instructed by Richard Buxton Solicitors) for the Appellant
Ruth Stockley (instructed by North Yorkshire County Council) for the Respondent
William Hanbury (instructed by Scarborough Borough Council) for the Interested Party
Hearing date: 13 th September 2012
The Issue
When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so "by right" or "as of right"? A non-lawyer would dismiss the distinction as a semantic quibble, but the correct legal answer is of considerable importance, both for local authorities and for those who apply under section 15 of the Commons Act 2006 ("the 2006 Act") to register as a town or village green land which they may have used for many years for recreational purposes.
Section 15 of the 2006 Act provides, so far as material:
"15 Registration of greens
(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2)….. applies.
(2) This subsection applies where –
(a) 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
(b) they continue to do so at the time of the application."
The Appellant's application under section 15 to register the Helredale playing field at Helredale Road, Whitby in North Yorkshire ("the Field") as a town or village green (TVG) was rejected by the Respondent because it accepted the conclusion of an independent Inspector, Mr. Vivian Chapman QC, that although the use of the Field met all of the other requirements of section 15(2), the local inhabitants' use of the Field for recreational purposes had been "by right" and not "as of right".
The Appellant accepts that if the correct position in law is, as the Inspector concluded, that the local inhabitants were using the Field by right, then the Field may not be registered as a TVG under section 15 because that section provides that the land must be used as of right in order to be registered.
The proceedings
Langstaff J dismissed the Appellant's claim for judicial review of the Respondent's decision not to register the Field as a TVG: [2011] EWHC 3653 (Admin). Permission to appeal was refused on the papers, but on a renewed oral application before the Vice President, Mr Douglas Edwards QC (who did not appear before Langstaff J) advanced a new ground of appeal which had not been raised before Langstaff J. The Vice President granted permission to appeal on the new ground because of its general importance, but refused permission to appeal in respect of the remaining grounds, all of which had been argued before, and rejected by, Langstaff J.
Factual background
There is no challenge to the Inspector's factual conclusions that the Field, which he said "has all the appearance of a typical municipal recreation ground" was acquired by the Whitby Urban District Council ("the UDC"), the predecessor of Scarborough Borough Council, the Interested Party, ("the Borough Council") in 1951 under section 73 of the Housing Act 1936 ("the 1936 Act") as a site for the erection of houses for the working classes. Section 72(1) of the 1936 Act authorised the UDC to provide housing accommodation for the working classes by the erection of houses on any land so acquired. The Field was laid out and maintained by the UDC as a recreation ground under section 80(1) of the 1936 Act, which provided:
"80 (1) The powers of a local authority under this Part of this Act to provide housing accommodation, shall include a power to provide and maintain with the consent of the Minister and, if desired, jointly with any other person, in connection with any such housing accommodation, any building adapted for use as a shop, any recreation grounds, or other buildings or land which in the opinion of the Minister will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided."
These provisions in the 1936 Act were consolidated without material amendment, save for the deletion of the requirement that the housing should be provided for "the working classes", in the Housing Act 1957, and are now contained in the Housing Act 1985 ("the 1985 Act"). Section 12(1) of the 1985 Act provides:
"12. Provision of shops, recreation grounds, etc.
(1) A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part –
(a) Buildings adapted for use as shops,
(b) Recreation grounds, and
(c) Other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided."
The application to register the Field as a TVG is dated 12 th October 2007. There is no dispute that the Field was maintained as a recreation ground by the Borough Council under section 12 of the 1985 Act for the relevant 20 year period from 1987 – 2007.
The Inspector's approach
Against this factual background the Inspector said in paragraphs 124 and 125 of his report:
"124 The question that arises is whether local people had a legal right to use a recreation ground which was set out under s. 80 of the 1936 Act and (during the relevant 20 year period) maintained under s. 12 of the 1985 Act as a recreation ground open to the public. The Open Spaces 1906 Act created by s. 10 an express statutory trust for public recreation. However, there is authority that where a statute empowers a local authority to acquire and lay out land for public recreation, the public have a legal right to use it. This point has been explored in relation to Public Health Act 1875 s. 164 (which contains no express trust for public recreation) in a series of cases:
A-G v Loughborough Local Board The Times 31st May 1881
Hall v Beckenham Corporation [1949] 1 KB 716
Sheffield corporation v Tranter [1957] 1 WLR 843
Blake v Hendon Corporation [1962] 1 QB 283
The same principle must apply to a recreation ground laid out under statute as an area for public recreation on a council estate. Council tenants, who are the primary objects for the provision of recreation, must have had a legal right to use the land for harmless recreation. It would be absurd to think of them as trespassers unless they first obtained the permission of the council to use the land for harmless recreation. Where the recreation ground, as in the present case, is laid out and maintained as a recreation ground open to the public pursuant to statutory powers, it seems to me that the public must similarly have a legal right to use the land for harmless recreation. Again, it would be absurd to regard them as trespassers. This view is supported by the obiter comments of Lord Walker in para. 87 of Beresford. I therefore consider that at least until 2003, when [the Borough Council] ceased to be owner of the remaining council houses, recreational use of the Field by local people was by right and not as of right. I did not hear any argument on the effect of the 2003 transfer of the remaining housing stock to Yorkshire Coast Homes, but it is not necessary for present purposes to consider the post 2003 legal situation.
125 I therefore consider that, at least until 2003, recreational user of the Field by local people was not "as of right". The application fails on this ground".
The Inspector had referred to the case of R (Beresford) v Sunderland City Council [2004] 1 AC 889 in paragraph 121 of his report, as follows:
"121 In my view, the critical issue in this case is whether recreational user of the Field by local people was "by right" or "as of right". Although the discussion of the point was obiter, there is strong guidance from the House of Lords in Beresford that user which is under a legal right is not user "as of right"
Lord Bingham paras 3 & 9
Lord Hutton para 11
Lord Scott paras 29–30
Lord Rodger para 62
Lord Walker paras 72, 87 & 88
The comments of Lord Walker at para. 87 are particularly pertinent. He considered that it would be difficult to regard recreational users as trespassers acting as of right not only where there was a statutory trust under s. 10 of the Open Spaces Act 1906 but also where land had been appropriated for the purposes of public recreation. Under s. 122 of the Local Government Act 1972 (as amended) a local authority can appropriate land from one statutory purpose to another. I understand Lord Walker to be remarking that if a local authority holds land for a statutory purpose which involves public recreational use of the land (albeit without an express statutory trust in favour of the public) use of that land for public recreation would not be "as of right"."
Provision of Open Space by local authorities
Before considering Beresford, which Mr. Edwards placed at the heart of his submissions on behalf of the Appellant, it is...
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