Category Archives: Common Land and Village Green

Commons: Management by the local authority removed need for landowner to communicate permission

If public access to land for recreational purposes was by permission of the land owner, then the use was not as of right.

Where the Local Authority is both land owner and manager of the land under public powers, then, in the absence of unusual circumstances, public use of such land is by permission.

In the Court of Appeal case of Naylor v Essex County Council [2015] the legal issue that arose in the judicial review application was whether the local inhabitants, who certainly used the land as a village green, were doing so by right or as of right such that they could now claim registration of the land as village green.

The land in question was owned by a private company but for many years, possibly from 1974 and certainly from 1989, the District Council had maintained the land as a public amenity for use by local residents and provided services by mowing the lawn, removing litter and erecting dog refuse bins on its perimeters. The inspector had concluded that those functions were probably assumed by the District Council exercising powers under the Open Spaces Act, 1906 which empowered the Council to undertake the care and control of open spaces even if it did not own them.

The claimants said the position was different if the land was owned by a private entity, and the land was only managed by the Local Authority (as here).

The court said the private landowner permitted the public to have access to the land by accepting public regulation over the use of the land.

In those circumstances, further acts of communication by the land owner of permission to the public to enter the land were not necessary since the land owner was content for the communication, to be continued to be done by the Local Authority who were inviting the public on the land on the landowner’s behalf by their acts.

The previous cases about the need for express communication of permission by land owners would remain good where there is no intervention of a public authority in terms of management of the land.

This blog has been posted out of general interest. It does not replace the need for bespoke legal advice in individual cases.