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In Barkas v North Yorkshire County Council  UKSC 31 the Supreme Court decides that land could not be registered as a town and village green (TVG) where its use by the public was permitted by statute. In doing so, it confirms a previous decision of the House of Lords is no longer good law.
Helredale playing field (the field) is situated in Whitby, North Yorkshire and is owned by Scarborough Borough Council. The field is approximately two hectares and was acquired in 1951 by the predecessor local authority to the council, who maintained the field as ‘recreation grounds’ pursuant to HA 1936, s 80(1) (now section HA 1985, s 12). In October 2007 the Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the field as a TVG under Commons Act 2006 (CoA 2006), s 15. An inquiry commissioned by North Yorkshire County Council concluded that, for at least the last fifty years, the field has been used extensively and openly by local inhabitants for informal recreation. The council arranges for the regular mowing of the grass and the marking out of the football pitch. Although a significant number of the inhabitants had indulged in lawful sports and pastimes on the land for at least 20 years, their use had not been ‘as of right’ even though the use met all of the other requirements of s 15. North Yorkshire County Council rejected the application to register the field as a TVG in October 2010. Christine Barkas, a member of the Neighbourhood Council, applied for judicial review of this decision. Her application was unsuccessful and the Court of Appeal unanimously dismissed her subsequent appeal. Barkas v North Yorkshire County Council,  All ER (D) 251 (Oct)
She appealed to the Supreme Court.
CoA 2006, s 15 provides that a person may apply to register land as a TVG where:
The key issue was whether the use of land provided and maintained by a local authority pursuant to HA 1985, s 12(1) or its statutory predecessors, by the public for recreational purposes, was use ‘as of right’ within the meaning of CoA 2006, s 15.
The Supreme Court unanimously dismissed the appeal, ruling that so long as land is held under a provision such as HA 1985 s 12(1), members of the public have a statutory right to use the land for recreational purposes and therefore use the land ‘by right’ rather than ‘as of right’.
The Supreme Court confirmed that if a person uses privately owned land ‘of right’ the use is rightful because it has been permitted by the landowner. However, if the use of such land is ‘as of right’, a number of cases relating to the acquisition of rights of way and other easements by prescription establish that it means that the use is without the permission of the landowner. Accordingly such use is not ‘of right’ or ‘by right’, but is carried on as if it were by right - hence ‘as of right’. The significance of the word ‘as’ is therefore crucial, making the expression ‘as of right’ effectively the opposite to ‘of right’ or ‘by right’.
The council’s argument was ‘as compelling as it is simple’. So long as land is held under a provision such as HA 1985 s 12(1), members of the public have a statutory right to use the land for recreational purposes. Therefore, they use the land ‘by right’ and not as trespassers, so that no question of use ‘as of right’ can arise.
Where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use, it was impossible to see how - at least in the absence of unusual additional facts - it could be appropriate to infer that members of the public have been using the land ‘as of right’ simply because the authority has not objected to their using the land. It seemed very unlikely that, in such a case, the legislature could have intended that such land would become a TVG after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use - it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position was very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a TVG and who would be expected to protect his or her legal rights.
Ms Barkas had argued that, even if members of the public were not trespassers, they were nonetheless not licensees or otherwise lawfully present when they were on the field. This could not be right. As against the owner (or more accurately, the person entitled to possession) of land, third parties on the land either have the right to be there and to do what they are doing, or they do not. If they have a right in some shape or form (whether in private or public law), then they are permitted to be there. If they have no right to be there, then they are trespassers. A person could not have the right to be on the land and yet be a trespasser (save where a person came on the land for a lawful purpose and then carried out an unlawful use). In other words a ‘tolerated trespasser’ is still a trespasser.
The fact that the landowner knows that a trespasser is on the land and does nothing about it does not alter the legal status of the trespasser. If a trespass has continued for a number of years, then the fact that it has been acquiesced in (or passively tolerated or suffered) by the landowner will not prevent the landowner claiming that it has been and is unlawful, and seeking damages in respect of it (subject to the constraints of the Limitation Act 1980). For the same reason, if such a trespass has continued for 20 years and was otherwise as of right, it will be capable of giving rise to a prescriptive right.
On the other hand, if the landowner has in some way actually communicated agreement to what would otherwise be a trespass, whether or not gratuitously, then he cannot claim it has been or is unlawful – at least until he lawfully withdraws his agreement to it. For the same reason, even if such an agreed arrangement had continued for 20 years, there can be no question of it giving rise to a prescriptive right because it would clearly have been with permission, and therefore ‘by right’.
The House of Lords’ decision in Beresford formed the lynch-pin of the case advanced for Ms Barkas. The Supreme Court confirmed it should no longer be relied on. Certain passages in Lord Scott’s judgment were simply wrong in principle and contrary to well-established authority, as well as being inconsistent with the other reasoned opinions. Beresford could - and should - clearly be distinguished from the present case where the land concerned was acquired and maintained by the local authority as public recreation grounds under a specific statutory power. By contrast, in Beresford, at least as the House of Lords concluded, the land concerned was neither acquired nor appropriated for any specific use, and, in so far as there was an intended use it was not for free public access. However, the Supreme Court confirmed it was necessary – for clarity – to go further and confirm that Beresford was wrongly decided.
The Supreme Court’s decision provides welcome clarity in this area. Lord Neuberger was ‘…quite satisfied that we should grasp the nettle and say that the decision and reasoning in Beresford should no longer be relied on, rather than leaving the law in a state of uncertainty, and requiring money and time to be expended on yet further proceedings.’ Where land is owned by a public authority with power to dedicate it for public recreation and it is laid out as such, use of the land is ‘by right’ rather than ‘as of right’.
Lawyers are now well-equipped to advise those claiming TVG rights over public authority land. They are unlikely to succeed unless the land has not been laid out or identified for public recreational use – as in the ‘Trap Grounds’ case.
This article was written by Joanna Bhatia, solicitor in the Lexis®PSL Property team and was first published in LexisPSL Property on 21 May 2014. Subscribers to Lexis®PSL Property can find the full summary of the case here. Otherwise, click here for a free one week trial of Lexis®PSL Property.
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