Where land is provided and maintained by a local authority under section 12(1) of the Housing Act 1985 (“1985 Act”) 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 (“2006 Act”)?
The meaning of “as of right” is, the opposite of “of right” or “by right”.
If a person uses privately owned land “of right” or “by right”, the use will have been permitted by the landowner – so the use is rightful.
However, if the use of the land is “as of right”, it is without the permission of the landowner, and so is not “of right” or “by right”, but is actually carried on as though it were by right – and therefore “as of right”.
The interpolation of the small word “as” makes “as of right” effectively the opposite of “of right” or “by right”.
The law distinguishes between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand.
Use acquiesced in by the owner is ‘as of right’; acquiescence is the basis of prescription. But, use with the licence or permission of the owner is not ‘as of right.’
Permission involves some positive act or acts on the part of the owner.
On the other hand passive toleration is all that acquiescence requires.
In the recent Supreme Court case of Barkas, R (on the application of ) v North Yorkshire County Council & Anor , Helredale playing field (“the Field”) was in Whitby, and owned by Scarborough Borough Council (“the Council”).
The Council laid out and maintained the Field as “recreation grounds” pursuant to section 80(1) of the Housing Act 1936, with the consent of the Minister as required by that section, the Housing Act 1957, and latterly section 12(1) of the 1985 Act.
Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the Field as a town or village green under section 15 of the 2006 Act.
The Supreme Court said so long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and so use the land “by right” and not as trespassers, so that no question of them using it “as of right” could arise.
Whether user was “as of right” should be judged by “how the matter would have appeared to the owner of the land”, which must be assessed objectively. Here a reasonable local authority in the position of the Council would have regarded the presence of the public, walking with or without dogs, taking part in sports, or letting their children play, as being an exercise of the public’s statutory right to be on the land and to use it for those activities: since the Field was being held and maintained by the Council for public recreation under section 12(1) of the 1985 Act and the Acts that preceded it.
Where a local, or other public, authority has lawfully allocated its land for public use (whether for a limited period or an indefinitely), it could scarcely be appropriate to infer that members of the public have been using the land “as of right”, simply because the authority had not objected to their using the land. To find the contrary would take very unusual and exceptional facts.
In such a cases, Parliament could hardly have intended that such land would become a village green just because the public had used it for twenty years.
Not only would the local authority not be expected to object to the public use: to have done so would have been positively inconsistent with their allocation decision.
A private owner, on the other hand, would be expected to protect his or her legal rights because he has no legal duty and no statutory power to allocate land for public use, and no ability to allocate land as a village green.
So the Helredale Neighbourhood Council’s appeal failed and the land was not registerable as a Town or Village Green.
This blog has been posted out of general interest It does not replace the need to get bespoke legal advice in individual cases.