04 June 2014 #Commercial Real Estate
The question of whether publicly-owned land can be registered as a town or village green has been clarified by the recent Supreme Court decision in R (Barkas) v North Yorkshire County Council which has stated that the previous decision in R( Beresford) v City Of Sunderland [2003) should no longer be followed.
A town or village green is defined as land on which a significant number of the inhabitants of any locality or neighbourhood in that locality have indulged "as of right" in lawful sports and pastimes for not less than twenty years.
For land to be used "as of right", it must be exercised by inhabitants of the district in which the green is situated without force, secrecy or the permission of the landowner. This can be contrasted with the situation where the use of land by is "by right" - in other words, where the use of the land is lawful.
Decision in R (Beresford) v City of Sunderland (2003)
Previously, in Beresford, the House of Lords held that the public’s statutory right to use of an area of land was “as of right” not “by right”.
As the use was “as of right” the twenty year period started to run under section 15 of the Commons Act 2006.
Clarification under R (Barkas) v North Yorkshire County Council (2014)
However, the decision in Beresford was revisited in Barkas, a case arising on similar facts. The Supreme Court has held that that the 2003 ruling had been incorrectly decided - the council land was used by local inhabitants with the permission of the owner of the land, as the council had designated the land as available for recreational use by the public under the provision of the Housing Act 1985.The statutory use permitted was “by right” as it was lawful and not “as of right”. Accordingly, any usage was carried out with the permission of the council landowner and therefore the required twenty year period of usage without permission could not begin to accrue.
Since the 2003 decision in R (Beresford) v City of Sunderland, there has been confusion over whether open spaces in the ownership of a local authority satisfy the test for inclusion in the register of town and village greens held by local councils. Beresford had made it increasingly difficult for councils to prevent the registration of publicly-owned land as a town or village green, but Barkas has now swung the pendulum back in the public authorities’ favour.”