Registration of a town or village green under section 15(2)(a) of the Commons Act 2006 (“the 2006 Act”) depends on the acquiescence or toleration by the landowner of a significant number of inhabitants of any locality (or neighbourhood within in it) indulging in lawful sports and pastimes on his land over a 20 year period without having any right to do so, but as if they had i.e. “as of right”.
The legal meaning of “as of right” is the opposite of “by right”.
If a person uses privately owned land as if he has a right to do so but his use is not permitted by its owner, his use is “as of right”.
But, if his use has been permitted by the landowner, his use is rightful – it is “by right”.
It makes no difference to the right, the public has to use the land, whether it has been made available for public recreational use by an owning local authority, or under an arrangement which a non owning local authority has with the actual landowner.
During that arrangement, the landowner has permitted (or allowed the local authority to permit) the public to use the land for recreational purposes.
The local authority’s powers to permit that use may be explicit or implicit in the enactment under which the local authority makes the arrangements, and, the local authority making the land available for use for the recreational purposes is sufficient communication to the public of that permission (if communication is in fact an essential element).
During the subsistence of those arrangement neither the landowner nor the authority can assert that a member of the public using the land for those purposes is a trespasser.
Members of the public would not be using the land “as of right” i.e. merely with the tolerance, as opposed to explicit permission of, the landowner, such as to found a prescriptive right.
Instead, they would be using it “by right” for a purpose for which they had been invited to use it. In other words, use by the public would be with permission from the landowner (or from a person the landowner had authorised to give it) and “by right”.
In the recent Planning Court case of Naylor v Essex County Council  the claimant challenged the respondent’s refusal to register the relevant land as town or village green based on the fact that the public’s use of it for lawful sports and pastimes had been “by right” during the 20 year period before the application for it’s registration was made, rather than being “as of right”.
The relevant land was owned by Silverbrook Estates Limited. But, except for some works in 1993, the land had been managed and maintained by the District Council as if it were an area of public open space or parkland available and open for all to use, at least from 1989-90 when it was included in a grounds maintenance contract let by the District Council.
The Planning Inspector had found it probable there had been a much longer term arrangement for it’s management and maintenance going back to before 1974. The most probable explanation was that the District Council had managed and controlled the land under sections 9 and 10 of the Open Spaces Act 1906 (“the 1906 Act”) or section 164 of the Public Health Act 1875.
So the Inspector had been entitled find that the use made of the land for lawful sports and pastimes had been “by right” (not “as of right”) during part of the 20 year period before the application for it’s registration was made.
This was based on fact that the relevant land had been made available by the District Council for such use by the public, with the agreement of the landowner, under the powers which that authority had vested in it by section 9 of the 1906 Act.
This blog has been posted as a matter of general interest. It does not replace the need to get bespoke legal advice in individual cases.