R (Barkas) v North Yorkshire County Council & Scarborough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWHC 3653 (Admin) |
| Date | 20 December 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/122/2011 |
[2011] EWHC 3653 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Leeds Combined Court Centre
Oxford Row
Leeds LS1 3BG
Mr Justice Langstaff
CO/122/2011
Mr Ormondroyd (instructed by Richard Buxton Sols) appeared on behalf of the Claimant
Miss Stockley (instructed by North Yorkshire County Council In House) appeared on behalf of the Defendant
(As Approved)
The Haredale playing field at Haredale Road, Whitby, became used as a playing field as long ago as 1948. On 12th October 2007 an application was made by some of those living close to the playing field to register the land as town or village green.
As one leaves Whitby toward Scarborough, the Haredale Road will take one past the playing field. It is as an inspector, Vivian Chapman QC, who was later to describe a field which was bell shaped in plan view. There were housing estates to the east and to the west. At the foot of the bell, the southern side of the field, there was further housing.
A non statutory Inquiry was heard in April 2010 with Mr Vivian Chapman QC as the inspector. In his report on 28th July 2010, he came to the conclusion that the use of the land on the evidence that he had received, which broadly he accepted, in so far as it came from the local residents, had been exercised without forcible entry by them onto the land, had not been exercised secretly and was not precarious in the sense of being expressly permissive. However, he declined to advise registration of the land because of the Commons Act 2006, section 15 provides an obligation to register where a significant number of the inhabitants of any locality 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 continued to do so at the time of the application (section 15(2)(a) and (b)). He concluded that the use made by the residents was not as of right, which implies that there is no actual statutory right, but it was by right.
The claimant takes issue with that conclusion. She argues that the use was upon a proper understanding of the applicable legislation as of right and not by right, at least by some of those who used the playing field and therefore the inspector's advice was flawed.
The defendant council received the inspector's report and a further report dealing with matters which had been raised by the applicants in October 2010 and proceeded to a decision of which formal notification was given on 29th October 2010. Both parties before me, the interested party taking no active part in the proceedings on the basis that it stands by the approach of the defendant and does not wish to make separate submissions, ask me to accept that the local authority adopted the views of the inspector. Accordingly, if he was in error, the local authority was in error and its decision to refuse to register was legally flawed.
The Issue
The issue for me arising out of that brief synopsis is whether the Inspector was wrong in law to conclude that the public had a legal right to use the land for recreational purposes when it was laid out and maintained as a recreation ground, open to the public, pursuant to the Housing Acts.
This question was addressed by the Inspector at paragraph 121 of his report of July 2010. He said:
"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.'"
He then went on to say:
"Although the discussion of the point was obiter, there is strong guidance from the House of Lords in Beresford [that being a reference to R (On the application of Beresford v Sunderland County Council, 2003 UKHL 60 also reported [2004] 1 AC 889] that user which is under a legal right is not user 'as of right'".
With that proposition, Mr Ormondroyd, who appears for the claimant agrees. The Inspector went on to say at paragraph 122:
"It appears to me to be a reasonable inference that the Field was set out and maintained as a recreation ground pursuant to s 80 of the 1936 Act. Provided that the Field benefited council tenants (which it clearly did) it did not matter that it also benefited other people within the local community: HE Green & Sons v The Minister of Health (No 2) [1948] 1 KB 34. This principle would, in my view, justify the council in allowing use of the Field by the Sunday League, even if its players were not all council tenants. Accordingly, it was within the power of Whitby UDC under s 80 to set out and maintain a public recreation ground provided that it benefited its tenants…. In any event, a local authority had power to lay out public open spaces on council estates under s 79(1) (a) without ministerial consent. If there had been no ministerial consent to setting out the Field as a recreation ground, it seems to me that the Field would fall to be regarded as a public open space. The 1936 Act contains no definition of 'recreation ground' or 'open space' for the purposes of these sections."
The reference to section 80 of the 1936 Act was a reference to section 80 of the Housing Act 1936, under which the land was acquired by the local authority in 1948, as I have described.
Section 80 comes in a part of the Act, Part 5 entitled "Provision of housing accommodation for the working classes". It is common ground that between the parties before me, that those words set out the purposes of the Part. Section 80 reads as follows:
"(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."
Section 79(1) (a) to which the Inspector made reference is in the same part and reads:
"Where a local authority have acquired or appropriated any land for the purposes of this Part of this Act then without prejudice to any of their other powers under this Act the authority may (a) lay out and construct public spits or roads and open spaces on the land."
I shall return to the decision in Green shortly.
The Inspector postulated at paragraph 124 that the question that arose was whether local people had a legal right to use a recreation ground which was set out under section 80 of the 1936 Act and during the relevant 20-year period maintained under section 12 of the 1985 Act as a recreation ground open to the public. The reference to section 12 of the 1985 Act is a reference to the Housing Act of 1985, which is the statutory successor of section 80. It makes no reference to the working classes, but in section 12 reads:
"Provision of shops, recreation grounds.
(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 power is thus though not identically expressed in materially the same terms as was section 80 of 1936 Act.
The Inspector reasoned, further in paragraph 124, that the Open Spaces Act 1906, created by section 10 and expressed statutory trust for public recreation. However, he observed:
"…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 the Public Health Act 1875 s 164 (which contains no express trust for public recreation) in a series of cases…"
He set them out, and added:
"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 SBC [that was being a reference to the interested party] 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."
The obiter comments of Lord Walker in paragraph 87 of Beresford, which support the Inspector's views, he thought as to the absurdity of concluding that some using the ground for recreation in the particular circumstances of this case should be treated as trespassers was a reference to the following passage in Lord Walker's speech in Beresford:
"…there was a further hearing of this appeal in order to...
To continue reading
Request your trial
-
Barkas (Appellant) North Yorkshire County Council (Respondent) Scarborough Borough Council (Interested Party) (No 2)
...[2012] EWCA Civ 1373 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT MR JUSTICE LANGSTAFF [2011] EWHC 3653 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Richards Lord Justice Sullivan and Lord Justice Mcfarlane Case No: C1/2012/0297 Be......
-
R (Newhaven Port & Properties Ltd) v East Sussex County Council
... ... To the north, the beach is bounded by a high sea wall, from which a pair of steps lead ... in Beresford had to be confronted by the Court of Appeal in R (Barkas) v North Yorkshire County Council [2012] EWCA Civ 1373 , which concerned ... ...
-
R (on the application of Barkas) v North Yorkshire County Council
...a member of the Neighbourhood Council applied for judicial review of this decision. Her application failed before Langstaff J – [2011] EWHC 3653 (Admin), and her appeal to the Court of Appeal was dismissed for reasons given by Sullivan LJ in a judgment with which Richards and McFarlane LJJ......
-
Table of Cases
...(1714) Sess 98, 93 ER 100 13.5 R v Watson (1804) 5 East 480, 1 Bott 202, 102 ER 1154 6.3 R (Barkas) v North Yorkshire County Council [2011] EWHC 3653 (Admin) 19.7 R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin), [2004] 1 EGLR 85, [2004] JPL 975,......
-
Village and Hundred
...Health NHS Foundation Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin). 22 R (Barkas) v North Yorkshire County Council [2011] EWHC 3653 (Admin). 23 Epsom Borough Council v Nicholls (1998) 78 P&CR 348. 24 See Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 at [53]......