R (on the application of Barkas) v North Yorkshire County Council

JurisdictionEngland & Wales
JudgeLord Neuberger,Lord Carnwath
Judgment Date21 May 2014
Neutral Citation[2014] UKSC 31
Date21 May 2014
CourtSupreme Court

[2014] UKSC 31

THE SUPREME COURT

Easter Term

On appeal from: [2012] EWCA Civ 1373

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Reed

Lord Carnwath

Lord Hughes

R (on the application of Barkas)
(Appellant)
and
North Yorkshire County Council and another
(Respondents)

Appellant

Douglas Edwards QC Philip Petchey

(Instructed by Richard Buxton Environmental and Public Law)

1 st Respondent

Nathalie Lieven QC Ruth Stockley

(Instructed by North Yorkshire County Council Assistant Chief Executive Legal and Democratic Services)

2 nd Respondent

George Laurence QC William Hanbury

(Instructed by Scarborough Borough Council Legal Services)

Heard on 2 April 2014

Lord Neuberger (with whom Lady Hale, Lord Reed and Lord Hughes agree)

Introductory
1

Helredale playing field ("the Field") is situated in Whitby, North Yorkshire, and it is owned by Scarborough Borough Council. The specific issue raised on this appeal is whether it should be registered as "a town or village green" under section 15 of the Commons Act 2006. The point of principle which this issue raises concerns the meaning of the expression "as of right" in section 15(2), and, more precisely, whether use is as of right when it is contemplated by the statutory provision under which a public body acquired and holds the land in question. This point, in turn, requires this Court to consider the reasoning of the House of Lords in R (Beresford) v Sunderland City Council [2004] 1 AC 889.

The factual and legal background
2

The factual background to the appeal is set out very fully in an excellent report prepared by Vivian Chapman QC, dated 28 July 2010, whose findings are accepted as accurate by the parties to these proceedings. For the purpose of this appeal, it is only necessary to set out his conclusions in very summary terms.

3

The Field is some two hectares in extent, and it was acquired as part of a larger parcel of land, amounting to some fourteen hectares, under a conveyance dated 20 June 1951, by the statutory predecessor of Scarborough Borough Council, Whitby Urban District Council (and I shall refer to the two Councils simply as "the Council"), acting pursuant to their powers under section 73(a) of the Housing Act 1936, which permitted a local authority "to acquire any land … as a site for the erection of houses".

4

The Council then developed most of the fourteen hectares for housing, and laid out and maintained the Field as "recreation grounds" pursuant to section 80(1) of the 1936 Act, with the consent of the Minister as required by that section. Sections 73 and 80 of the 1936 Act were repealed and substantially re-enacted in the Housing Act 1957, whose provisions were in turn repealed and substantially re-enacted (albeit with more amendments) in the Housing Act 1985.

5

Section 12(1) of the 1985 Act (which is in Part II, concerned with "provision of housing accommodation") is in virtually identical terms to section 80(1) of the 1936 Act (save that "the Minister" has been replaced by "the Secretary of State"), and it provides as follows:

"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."

(Denning J explained in a case on the effectively identically worded section 80(1) of the 1936 Act, HE Green and Sons v Minister of Health (No 2) [1948] 1 KB 34, 41, that the section did not require the use of "buildings", "recreation grounds" or "other buildings or land" to be restricted to "the persons for whom the housing accommodation is provided", and that the use could also validly extend to other members of the public.)

6

Subsequent to the acquisition of the fourteen hectares, the Council acquired other land adjoining or close to the Field, which it then developed for housing.

7

For at least the last fifty years, the relevant facts relating to the Field are as follows. It is surrounded by land consisting of three residential estates which were developed as local authority housing. It has four entrances, which are open at all times, and which have notices requiring dogs to be kept on leads and dog-owners to clear up after their dogs. It has the appearance of a municipal recreation ground, mostly laid to grass, including a football pitch, and it is crossed by a hard-surface path. The Council maintains the Field, in the sense of arranging for the regular mowing of the grass in summer and the marking out of the football pitch (currently once a year, but previously more frequently). The Field is used extensively and openly by local inhabitants for informal recreation, largely, but not exclusively, for children playing and walking dogs. Until 2005, the football pitch was used for local league football matches with the Council's licence.

The procedural history
8

On 12 October 2007, Vivienne Wright, acting on behalf of the Helredale Neighbourhood Council, of which she was secretary, applied to the North Yorkshire County Council ("NYCC") to register the Field as a town or village green under section 15 of the 2006 Act.

9

Section 15 of the 2006 Act provides, so far as relevant to this appeal, as follows:

"(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."

10

In order to determine the application, NYCC decided to appoint Mr Chapman to conduct an inquiry, which he duly held over two days in April 2010. Following that, he produced a report in July 2010, as mentioned above. (It was followed by a supplementary report in September 2010, but nothing hangs on that for present purposes). Apart from making detailed findings, including those summarised above, Mr Chapman concluded in his report that, although "a significant number of the inhabitants of [the] locality … [had] indulged … in lawful sports and pastimes on the land for a period of at least 20 years" their use had not been "as of right". In other words, as Sullivan LJ put it in the Court of Appeal, the inspector concluded 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'" [2013] 1 WLR 1521, para 3.

11

Accordingly, Mr Chapman recommended that the application to register the Field as a town or village green be rejected. This recommendation was considered and accepted by NYCC on 8 October 2010. Christine Barkas, 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 agreed. She now appeals to this Court.

The issue raised by this appeal
12

The basic issue which the appeal raises is a short one: where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes "as of right" within the meaning of section 15(2)(a) of the Commons Act 2006?

13

NYCC, with the support of the Council, contend that the answer is "no", whereas Ms Barkas, on behalf of the Neighbourhood Council, argues that the answer is "yes". In the course of her argument, Ms Lieven QC, who appears for NYCC, and is supported by Mr Laurence QC, who appears for the Council, made it clear that she challenged part of the reasoning, and the ultimate decision, of the House of Lords in Beresford, although her primary contention is that it is distinguishable. As explained below the decision is on any view not without its difficulties. Accordingly, I propose first to consider the issue by reference to principle and one or two earlier decisions of the House of Lords, and only then to turn to Beresford.

The meaning of "as of right"
14

The origin of the expression "as of right" in the definition of "town or village green" in section 22(1) of the Commons Registration Act 1965, which is effectively for present purposes the statutory predecessor of section 15(2) of the 2006 Act, was authoritatively discussed by Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 349D-351H. As he said, it originates from the law relating to the acquisition of easements by prescription. Before examining what Lord Hoffmann said, it is, I think, helpful to explain that the legal meaning of the expression "as of right" is, somewhat counterintuitively, almost the converse of "of right" or "by right". Thus, if a person uses privately owned land "of right" or "by right", the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is "as of right", it is without the permission of the landowner, and therefore is not "of right" or "by right", but is actually carried on as if it were by right – hence "as of right". The significance of the little word "as" is therefore crucial, and renders the expression "as of right" effectively the antithesis of "of right" or "by right".

15

In his discussion on the point in Sunningwell, Lord Hoffmann began by...

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