R v Sunderland City Council, ex parte Beresford

JurisdictionUK Non-devolved
Judgment Date13 November 2003
Neutral Citation[2003] UKHL 60
CourtHouse of Lords
Date13 November 2003
City of Sunderland
ex parte Beresford (FC)

[2003] UKHL 60

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Hutton

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe



My Lords,


The issue in this appeal is whether the Sunderland City Council erred in law in refusing to register as a "town or village green" under the Commons Registration Act 1965 an area of land known as the Sports Arena ("the land") close to the town centre of Washington, Tyne and Wear. I am indebted to my noble and learned friends Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe for their summaries of the relevant facts and the history of these proceedings, which I gratefully adopt and need not repeat.


As defined in section 22 of the 1965 Act, before its amendment by section 98 of the Countryside and Rights of Way Act 2000, the expression "town or village green" means (for present purposes):

"land … on which the inhabitants of any locality have … indulged in [lawful] sports and pastimes as of right for not less than twenty years."

As Pill LJ rightly pointed out in R v Suffolk County Council, Ex p Steed (1996) 75 P & CR 102, 111:

"it is no trivial matter for a landowner to have land, whether in public or private ownership, registered as a town green …".

It is accordingly necessary that all ingredients of this definition should be met before land is registered, and decision-makers must consider carefully whether the land in question has been used by the inhabitants of a locality for indulgence in what are properly to be regarded as lawful sports and pastimes and whether the temporal limit of 20 years' indulgence or more is met. These ingredients of the definition can give rise to contentious and difficult questions. But they do not do so in this case. The only difference between the parties, on which the appeal turns, is whether the admitted use of the land by the inhabitants of the locality for indulgence in lawful sports and pastimes for not less than 20 years was "as of right".


In this context it is plain that "as of right" does not require that the inhabitants should have a legal right since in this, as in other cases of prescription, the question is whether a party who lacks a legal right has acquired one by user for a stipulated period. It is also plain that "as of right" does not require that the inhabitants should believe themselves to have a legal right: the House so held in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 354, 356. It is clear law, as summarised in the last-mentioned decision, that for prescription purposes under the Prescription Act 1832, the Rights of Way Act 1932 and the 1965 Act "as of right" means nec vi, nec clam, nec precario, that is, "not by force, nor stealth, nor the licence of the owner": see pp 350, 351, 353-354. In this case there was no question of force or stealth. So the only question is whether the inhabitants' user was by the licence of the owner.


It was not suggested that the council had expressly licensed the inhabitants' use of the land, either in writing or orally. The argument was accordingly directed to whether it was ever possible to imply a licence by a landowner to use land in the manner prescribed by the statute and, if so, whether the facts here could properly be held to give rise to such an implication.


I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.


Authority, however, establishes that a licence to use land cannot be implied from mere inaction of a landowner with knowledge of the use to which his land is being put. In Davies v Du Paver [1953] 1 QB 184, which concerned a private right, Morris LJ said, at p 210:

"Before Mr Davies could establish a claim based on prescription the evidence would have to show that the owner of the servient tenement had knowledge of what was happening, or as an ordinary owner must be taken to have had reasonable opportunity of knowledge, and that, having power to prevent it, he did not intervene."

In Mills v Silver [1991] Ch 271, which also concerned a private right, Dillon LJ acknowledged, at pp 279-280, that

"it would be easy to say … that there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement in the particular manner for the appropriate number of years has been tolerated without objection by the servient owner. But there cannot be any such principle of law because it is, with rights of way, fundamentally inconsistent with the whole notion of acquisition of rights by prescription. It is difficult to see how, if there is such a principle, there could ever be a prescriptive right of way."

At p 281 Dillon LJ added:

"It is to be noted that a prescriptive right arises where there has been user as of right in which the servient owner has, with the requisite degree of knowledge … acquiesced. Therefore mere acquiescence in or tolerance of the user by the servient owner cannot prevent the user being as of right for purposes of prescription."

Parker LJ, at p 290, was of the same opinion:

"The true approach is to determine the character of the acts of user or enjoyment relied on. If they are sufficient to amount to an assertion of a continuous right, continue for the requisite period, are actually or presumptively known to the owner of the servient tenement and such owner does nothing that is sufficient …

I add only this, that any statement that the enjoyment must be against the will of the servient owner cannot mean more than 'without objection by the servient owner'. If it did, a claimant would have to prove that the right was contested and thereby defeat his own claim."

In R v Oxfordshire County Council, Ex p Sunningwell District Council [2001] 1 AC 335 it was held by the House that the landowner's toleration of the local inhabitants' user of the land in question was not inconsistent with such user having been as of right, and so did not prevent registration of the land in question as a town or village green. As my noble and learned friends Lord Rodger and Lord Walker point out, some caution is required of English lawyers reading the Scottish authorities, since the applicable legislation is not the same and "tolerance" is used to mean not acquiescence but permission. It does however appear that the Scots approach to prescription, as applied to public rights of way, is close to the English. As the Lord President (Hope) put it in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035, 1041, in a passage expressly approved by the House of Lords (1993 SC (HL) 44, 47),

"… where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right."


Recognising that the authorities preclude reliance on mere inaction as giving rise to an implied licence to use the land, the council has placed reliance on its conduct in mowing the grass on the land and providing benches for the accommodation of spectators and other users of it. This, it was said, showed that the council was encouraging the public to use the land, from which its licence to do so could be implied. Both the mowing of the grass and the provision of benches are open to more than one explanation. But the argument is in my opinion open to a more fundamental objection. As already pointed out, the 1965 Act drew heavily on principles established under the Acts of 1832 and 1932, relating to private and public rights of way respectively, and in neither of these instances could acts of encouragement by the servient owner be relied on to contend that the user by the dominant owner had not been as of right. Such conduct would indeed strengthen the hand of the dominant owner. Here the conduct is in any event equivocal: if the land were registered as a town or village green, so enabling the public to resort to it in exercise of a legal right and without the need for any licence, one would expect the council to mow the grass and provide some facilities for those so resorting, thus encouraging public use of this valuable local amenity. It is hard to see how the self-same conduct can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council's licence.


In the decision under challenge, the council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been as of right. In her clear and helpful judgment ( [2001] 1 WLR 1327) Janet...

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