England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Smith J.)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 26th July 2001

LORD JUSTICE DYSON:

Introduction

1. The appellant is a resident of Washington, Tyne-and-Wear in the administrative area of the City of Sunderland ("the Council"). The Council is the registration authority for the purposes of registering and maintaining a register of town and village greens within the city pursuant to section 3 of the Commons Registration Act 1965 ("the 1965 Act"). On 18 November 1999, the appellant, together with three other local residents, submitted an application for land known as "the Sports Arena" adjacent to Princess Anne Park, Washington to be registered as a town green, and for the Town and Village Greens Register to be amended accordingly pursuant to section 13 of the 1965 Act. On 27 April 2000, the Licensing Committee of the Council refused the application. The sole ground on which the application was refused was that the use which was found to have been made of the Sports Arena for more than 20 years by local inhabitants was not "as of right". The Committee decided that there had been an implied permission to use the land which was sufficient to defeat the claim that there had been use "as of right" within the meaning of the definition of "town and village green" in section 22(1) of the 1965 Act, which is in these terms:

"Town or village green" means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."

2. The appellant challenged that decision by judicial review. Two issues were raised: (a) can an implied permission to use land defeat a claim to use of a town or village green for lawful sports and pastimes "as of right"; and (b) if yes, should the decision of 27 April 2000 be quashed on the grounds that it was legally flawed in one or more of the respects alleged by the appellant? Smith J answered (a) affirmatively, and (b) in the negative. On behalf of the appellant, Miss Cameron QC submits that both conclusions of the judge were wrong. The first issue is an issue of considerable general importance, on which there is no direct previously decided authority.

The facts

3. The Sports Arena lies at the northern end of Princess Anne Park and to the south of Washington Town Centre. Princess Anne Park is a large landscaped parkland area. The Sports Arena is not part of the Park itself, being separated from it by a low mound thickly planted with trees. It is a grass arena formed within double rows of wooden benches which surround its northern, western and southern edges. It was originally laid out by the Washington Development Corporation ("WDC") in 1973-74 using excavated soil from the shopping centre development. In the Washington New Town Plan of 1973, the Sports Arena site was included within an area identified as "parkland/open space/major playing field". The perimeter seating (for 1100 people) was added in 1977, and a non-turf cricket wicket was constructed in 1979. Throughout the period of more than 20 years up to 18 November 1999, the grass was kept cut by the owners from time to time.
4. A handwritten draft report was submitted to the WDC's Chief Officers Committee on 26 July 1982. This was referred to in the report prepared for the licensing committee meeting of 27 April 2000. The draft report itself has not been produced in evidence, although it was said in the report for the meeting of 27 April to be "on an archived WDC file relating to the town centre". According to the report for the meeting of 27 April, the draft report for the meeting of 26 July 1982 referred to a "Board paper 132/77", which stated that in the interim period, before a sports complex could be provided, the arena was "to be made available for recreational sporting use and other activities on a town scale such as jazz band parades, displays and sporting events". There is no evidence as to what became of the Board paper, or what use was made of it by the Board.
5. In 1989, the Sports Arena site was transferred by the WDC to the Commission for the New Towns ("CNT") as part of the general disposition of assets of the WDC on its winding-up. In 1991, certain community-related assets of the CNT were transferred to the Council. The Sports Arena was retained by the CNT at that time since it was thought to have potential long-term commercial value.
6. In 1996, the site was transferred by the CNT to the Council. On 24 December 1998, planning permission was granted for the erection of a college of further education on land which included the Sports Arena. As I have already said, the application to register the site as a town green was made on 18 November 1999.

The decision of 27 April 2000

7. The licensing committee was provided with a comprehensive report by the director of administration. It is a model of its kind. It set out the facts clearly and fairly, and provided an impressive exposition of the law in an area in which there was no previous direct authority. Having set the history of the site as I have described it, the report summarised the use to which the Sports Arena had been put since its creation. In general terms, the site had been used as amenity open space and a kickabout area for a period of at least 20 years. The amenity uses included walking, football, picnics, cricket etc. Having set out in some detail the arguments advanced in support of the application to register, and the grounds of objection put forward by the City of Sunderland College, the report dealt with the issues that arose (section 7). It seemed to the writer of the report that the site had been used for lawful sports and pastimes for a period of at least 20 years prior to the date of the application. The two questions for consideration were (a) whether the enjoyment was by the inhabitants of the locality, and (b) whether the enjoyment was as of right. No issue arises as to (a), and I shall say no more about it. As for (b), the report referred to the decision of the House of Lords in R v Oxfordshire County Council ex p Sunningwell Parish Council [2000] 1AC 335, and advised the committee that it was not enough to defeat a claim based on 20 year use that the use had been tolerated by the land owner. The report continued:

"In "traditional" parks which are fenced and have opening hours, enjoyment by the public (inhabitants of the locality) will be by virtue of a licence during the hours of daylight. However not all parks conform to this "traditional" model – the Princess Anne Park for example – and it would be bizarre if these were all town and village greens.

This would suggest that if it is apparent from the circumstances that the land in question has been made available to the public, and that their use has not simply been tolerated but in effect encouraged, a licence should be implied from the circumstances.

It may be noted from the documents submitted with the application that the applicants know a great deal of the history of the application site and the circumstances in which it was made available for public use. However it is not clear how far, if at all, reliance can be placed upon this material as demonstrating that the use has been by way of licence.

However everyone using the site would have been aware of the perimeter seating and that the grass was kept cut. It is difficult to conceive that anyone could have imagined that this was other than a recreational area provided for use by the public for recreation. Against this background the "implied licence" argument is strong and it is considered that on this basis the enjoyment has not been "as of right". The argument is stronger if references were to be made to the history (see section 2 above), however members are advised to treat this history with caution as there does not appear to be any public document indicating that the land was being made available by a public authority for public use (although the 1973 New Town Plan comes close to this).

This is a developing area of the law and it cannot be said that the legal position is clear. There is no authority on the implied licence argument and it may be criticised that it runs counter to the guidance of the House of Lords in the case of Sunningwell that a tolerated use may be as of right. However there is clear authority for saying that a licence does not have to be communicated to the Licensees who may indeed, in ignorance of the licence, believe that their use is as of right.

On balance in the circumstances of the present written application it is difficult to conclude that the use had been as of right."

8. After hearing submissions, the committee decided to refuse the application on the following grounds:

"(a) Members were satisfied that evidence showed the use of the Sports Arena for "lawful sports and pastimes" by the inhabitants of Washington for a period of at least 20 years prior to the making of the application, the level of use being more than trivial or sporadic. The real issue for consideration was whether there had been permission or a licence to use the site in this way.

(b) Having taken legal advice, members were satisfied that an implied licence would be sufficient to defeat the application, provided that there was sufficient evidence to support the existence of a licence.

(c) Members considered that there was evidence of an implied licence since the site is publicly owned land, specifically laid out as an arena with seating, which is adjacent to the Princess Anne Park and which has been maintained by the Council and the Washington Development Corporation before it. Members agreed with the comment in the report that "it is difficult to conceive that anyone could have imagined that this was other than a recreational area, provided for use by the public for recreation." The other information contained in Section 2 of the report, whilst not in itself conclusive, supported the view that the Sports Arena was intended for public use."

The first issue: can a claim to use of land "as of right" be defeated by implied permission?

As a matter of principle

9. Miss Cameron submits as follows. The concept of use "as of right" connotes use "without force, stealth or permission" or nec vi, nec clam, nec precario.There must be some overt and contemporaneous expression of permission before a landowner can defeat a claim based on the ground that the use was permissive, and, as a matter of principle, the only way that such expression can be given is orally or in writing. I confess that I had some difficulty in understanding the argument that as a matter of principle it would be wrong to allow a claim of user "as of right" to be defeated by an implied grant of permission. Miss Cameron submits that, if implied permission were capable of defeating a claim to use as of right, that would operate unfairly against those claiming a right based on use. That is because a landowner would be able to do nothing to prevent use of his land for lawful sports and pastimes (or to pass and repass in the context of rights of way), and yet when a claim to a prescriptive right is made, he would be able to defeat it.
10. I cannot accept this argument. It is trite law that for user to be "as of right", it must be nec vi, nec clam, nec precario. As Lord Hoffmann said in Sunningwell (page 350H-351A) the "unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right". In the third case (nec precario), it was because he had consented to the use. In Dalton v Angus & Co [1881] 6 App Cas 740, 773, Fry J (advising the House of Lords) rationalised the law of prescription as follows:

"the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest."

11. Thus the law draws a distinction between (a) an owner's acquiescence in or toleration of the use of his land by others for lawful sports or pastimes, and (b) his giving licence or permission for such use. In some contexts, it may be that there is little or no difference in meaning between the two concepts. But in the context of the law relating to prescription, the difference is fundamental, since use which is merely acquiesced in by the owner is prima facie "as of right", although it may be defeated if the owner can show, inter alia, that he permitted it. It is now clearly established that mere acquiescence in or toleration of the user by the servient owner cannot prevent the user being user as of right for purposes of prescription: see per Lord Hoffmann in Sunningwell (page 358F-G).
12. What is the essential difference in the present context between permission and acquiescence? In my view, it is that permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence. The positive act or acts may take different forms. The grant of oral or written consent is the clearest and most obvious expression of permission. But there is no reason in principle why the grant of permission should be confined to such cases. I can see no reason why permission may not also be inferred from an owner's acts. It may be that there will not be many cases where (in the absence of express oral or written permission) it will be possible to infer permission from an owner's positive acts. Most cases where nothing is said or written will properly be classified as ones of mere acquiescence. But suppose that (a) cricket and football pitches had been laid out and a sports pavilion built at the Sports Arena; (b) the facilities had been well maintained by the various authorities that owned the site from time to time; and (c) none of the authorities issued any statement or passed any resolution expressly permitting inhabitants in the locality to use the site for purposes of sport and pastimes. Why should it not be inferred from such facts that the authorities permitted such use of the site? It cannot seriously be suggested that these facts would disclose no more than acquiescence in the use of the site for the purposes of sport and pastimes. The reality is that, on such facts, the owners of the site would be showing by their overt behaviour that they were actively encouraging, and thereby permitting, the use of the site for those purposes. In principle, the position would be no different if there had been an express oral or (more likely) written grant of permission.
13. I would, therefore, hold that there is no reason in principle why an implied permission may not defeat a claim to use "as of right" Such permission may only be inferred from overt and contemporaneous acts of the landowner.
14. Mr Petchey relies on the fact that implied licences are known to the law in other contexts. For example, when a householder lives in a dwelling-house to which there is a front garden, and he does not lock the garden gate, he gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the house, and inquire whether he may be admitted and to conduct his lawful business: such an implied licence may be rebutted by express refusal of it: see per Diplock LJ in Robson v Hallett [1967] 2 QB 939, 953G-954A. Mr Petchey has given other examples. In my view, it is not necessary to seek analogies from other areas of the law. It seems to me that it is obvious that a person may give permission either expressly or by implication. Whether the inference of permission is to be drawn in any particular case will depend on the facts of that case.

Previous authority

15. I turn, therefore, to consider Miss Cameron's submission that the notion that a claim to use as of right may be defeated by implied permission is inconsistent with a long-established line of authority culminating in Sunningwell. The first case that she cited (and, she said, the most important) was Bright v Walker [1834] 1 CM&R 218. This was a decision under the Prescription Act 1832 shortly after that Act came into force. As Lord Hoffmann made clear in Sunningwell (page 354A): "There is no reason to believe that "as of right" [sc. in section 22(1) of the 1965 Act] was intended to mean anything different from what those words meant in the Acts of 1832 and 1932." He was referring to the Prescription Act 1832 and the Rights of Way Act 1932 repectively. Speaking of the ways in which a claim may be defeated, Parke B said at page 219:

"Again, such claim may be defeated in any other way by which the same is now liable to be defeated; that is, by the same means by which a similar claim, arising by custom, prescription, or grant, would now be defeasible; and, therefore, it may be answered by proof of a grant, or of a licence, written or parol, for a limited period, comprising the whole or part of the twenty years,"

16. Miss Cameron emphasises the words "answered by proof of a grant, or of a licence, written or parol", and submits that this is clear authority for the proposition that the only way in which a claim can be defeated on the basis that the user was precario is by express grant of permission orally or in writing. Miss Cameron points out that, in his comprehensive review of the history of the law in this area in Sunningwell, Lord Hoffmann referred to Bright v Walker with evident approval.
17. She also relies on two passages in the first edition of Gale on the Law of Easements (1839). At page 121:

"The effect of the enjoyment being to raise the presumption of a consent on the part of the owner of the servient tenement, it is obvious that no such inference of consent can be drawn, unless it be shewn that he was aware of the user, and, being so aware, made no attempt to interfere with its exercise. Still less can such consent be implied, but rather the contrary, where he has contested the right to the user, or where in consequence of such opposition an interruption in the user has actually taken place. Even supposing these defects of the user not to exist, still the effect of the user would be destroyed if it were shewn that it took place by the express permission of the owner of the servient tenement, for in such a case the user would not have been had with the intention of acquiring or exercising a right. The presumption, however, is, that a party enjoying an easement acted under a claim of right until the contrary is shewn."

18. At page 125, there is a discussion of the meaning of nec precario as follows:

"Enjoyment had under a license or permission from the owner of the servient tenement, as has been already remarked, confers no right to the easement. Each renewal of the license rebuts the presumption which would otherwise arise, that such enjoyment was had under a claim of right to the easement.

Any admission, whether verbal or otherwise, that the enjoyment had been had by permission of the owner of the servient tenement was sufficient, before the recent statute, to prevent the acquisition of the right, however long such enjoyment might have continued.

"Si autem," says Bracton, "(seisina) precaria fuerit et de gratia,quae tempestive revocari possit vel intempestive, ex longo tempore non acquiritur jus".

By the statute a distinction is made as to the effect of a parol license in those cases in which the right is declared to be absolute and indefeasible, and those in which there is no such provision. In the former instance, although the enjoyment commenced by permission, yet after it has continued during the requisite period (forty years in general, and twenty in the case of lights), the right cannot be invalidated, except by proof that the easement "was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

The latter case is not affected by the statute."

19. Miss Cameron also relies on Mills v Colchester Corporation [1867] LR 2 CP 476 per Willes J who said at page 486:

"Equally in the case of custom as in that of prescription, long enjoyments in order to establish a right must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time; and of the latter character was the enjoyment relied upon in this case."

20. Further, she refers to Earl de la Warr v Miles [1881] 17 ChD 535, per Brett LJ (page 591) and Cotton LJ (page 596), and Merstham Manor Ltd v Coulsdon & Purley UDC [1937] 2 KB 77, 83-84 per Hilbery J. I do not cite from these last two authorities because they contain statements of the most general nature about the need for the user not to have been pursuant to permission given by the owner. But they provide no assistance on the question whether the permission may be given impliedly as well as expressly.
21. In none of the cases relied on by Miss Cameron was there an issue as to whether permission sufficient to defeat a claim to use as of right must be express, or whether it may be inferred from the circumstances of the case. It is true that in Bright v Walker Parke B did speak of "proof of a grant or of a licence written or parol". But, as always, the context is crucial. Parke B was to some extent providing a general route map of the Prescription Act 1832. He was not, however, purporting to write a thesis on every detail of the Act. In my judgment, the words relied on by Miss Cameron were not intended to be an exhaustive definition of what constitutes permission for the purposes of defeating a claim to use "as of right". The question of what kind of permission would suffice was not in issue in that case. In these circumstances, Miss Cameron seeks to build on the foundations of Bright v Walker an edifice which the context of the case and the words used by Parke B simply will not bear. It follows that the fact that Lord Hoffmann referred to Bright v Walker in Sunningwell with apparent approval does not advance the argument.
22. Similarly with regard to the first edition of Gale. The passage relied on at page 121 provides no more than an example of a situation in which acquiescence (there described as "consent") would be defeated. Thus the author says that the effect of the user would be "destroyed" if it were shown that it took place by the express permission of the owner of the servient tenement. But it cannot be inferred from this passage that the only way in which a claim to user as of right can be defeated on the basis that it was precario is where the permission was granted expressly by word or in writing. The passage at page 125 refers to "enjoyment had under a licence or permission from the owner of the servient tenement". It says nothing about how the grant of that permission may be conveyed. Similarly, it cannot be inferred from the reference to "the effect of a parol licence" that, unless it is written, permission to defeat a claim to a prescriptive right must be given orally.
23. In my judgment, the line of authority relied on by Miss Cameron does not support the proposition that permission may not be inferred from the facts. The only statement which at first blush appears to assist her argument is that in Bright v Walker, but for the reasons that I have given, on a closer analysis, it does not in fact do so.
24. There is one other authority which the judge considered to be inconsistent with Miss Cameron's argument, although "inconclusively" so: Gardner v Hodgson's Kingston Brewery Co. Ltd. [1903] AC.229. In that case, the plaintiff claimed under section 2 of the 1832 Act that she and her predecessors in title had for more than 40 years been entitled to use, as of right, a way through a yard leading from her house to the public highway. She acknowledged that she had paid an annual sum of 15 shillings, but there was no conclusive evidence as to the origin of or the consideration for the payment. The defendant contended that it was for a licence to use the right of way. But there was no evidence of any agreement, oral or in writing. The House of Lords held that the plaintiff had not discharged the burden on her of establishing that the user had not been pursuant to a licence. At page 239, Lord Lindley said:

"A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense above explained. This, I think, is the proper inference to be drawn from the authorities discussed in the Court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established; and this, I think, is the real truth in the present case.

The enjoyment is equally open to explanation in one of two ways, namely, by a lost grant of a right of way in consideration of a rent-charge on the plaintiff's land of 15s. a year, or by a succession of yearly licences not, perhaps, expressed every year, but implied and assumed and paid for."

25. The significance of this passage is that Lord Lindley was of the opinion that the payments raised an inference of a succession of yearly licences "not perhaps expressed every year, but implied and assumed and paid for" (my emphasis). Her claim to enjoyment as of right failed because she was not able to exclude the possibility that it had been by licence of the owner. In my view, this supports the argument that implied permission may be sufficient to defeat a claim.
26. I conclude, therefore, that the judge was right to decide the first issue in the way that she did. There is no reason in principle why implied permission should not be relied on by an owner to defeat a claim of user as of right, and, principle pointing the way, the authorities do not suggest a different solution.

The second issue: was the decision of 27 April 2000 legally flawed?

27. Miss Cameron submits that, in reaching its decision that there had been implied permission to use the site for lawful sports and pastimes, the committee took into account a number of irrelevant considerations. The factors taken into account by the committee were: (a) the site was publicly owned; (b) it was specifically laid out as an arena with seating; (c) it was adjacent to the Princess Anne Park; (d) it had been maintained by the Council and the WDC before it; (e) it was difficult to conceive that anyone could have imagined that this was other than a recreational area provided for use by the public for recreation; and (f) the other information contained in section 2 of the report, whilst not in itself conclusive, supported the view that the Sports Arena was intended for public use.
28. Before the judge, it was submitted that factors (a) and (c) were irrelevant. The judge agreed that (c) was irrelevant, but she decided that even if that factor had not been taken into account, the outcome was bound to have been the same. She rejected the argument that (a) was irrelevant, saying that the fact that the land was in public ownership was relevant when "one is considering what conclusion a reasonable person would draw from the circumstances of user". She said that it is well known that, unlike private landowners, local authorities as part of their normal functions provide facilities for the use of the public and maintain them at public expense.
29. On appeal, Miss Cameron has renewed the argument that (a) and (c) were irrelevant and that the decision was flawed because, to some extent at least, it was based on them. Additionally, she argues that factor (e) was irrelevant too. Her argument is that, if one reads the second sentence of paragraph (c) of the grounds for the decision of 27 April together with the relevant passage in the report, it is clear that the committee took into account its understanding of the state of mind of the users of the site. The subjective belief of the users is irrelevant: see Sunningwell per Lord Hoffmann pages 353-356. The question whether there has been use as of right must be determined objectively.
30. I agree with the judge that the fact that the land is in public ownership is part of the relevant background for the reasons that she gives. It would have been artificial to ask the committee to ignore the fact that the site was in public ownership. It was because it was owned by successive public bodies that, on the facts of this case, the question as to whether implied permission had been given for lawful sports and pastimes arose at all. Nevertheless, I would accept that, on its own, it was a factor of little weight. There is no reason to suppose that it was regarded as an important factor by the committee. It was not identified as a relevant factor in the report that was prepared for the meeting. The same may be said of the fact that the site was adjacent to the Princess Anne Park. Mr Petchey has not sought to argue that the judge was wrong to hold that this was an irrelevant factor. But it was, at most, a peripheral point. It was not referred to in the report as a relevant factor. I do not believe that, if the committee had been told in terms that they should not take account of the fact that the land was in public ownership and was adjacent to the Princess Anne Park, their decision would have been any different.
31. The reality of the situation is that the committee had been advised that the implied licence argument was "strong" because of the presence of the perimeter seating and the fact that the grass was kept cut, and because no-one could have imagined that this was other than a recreational area provided for use by the public for recreation. The strength of the argument was based on objectively ascertainable facts which the committee could reasonably rely on to arrive at the conclusion that this was a case of user by implied permission. I do not accept that the committee took into account the subjective beliefs of the users. Miss Cameron relies on the following two sentences from the report:

"However everyone using the site would have been aware of the perimeter seating and that the grass was kept cut. It is difficult to conceive that anyone could have imagined that this was other than a recreational area provided for use by the public for recreation."

32. She submits that the first sentence is directed at the subjective beliefs of the users, which are irrelevant; and that there is a clear nexus between the first and second sentences. In other words, the second sentence suffers from the same flaw as the first. I do not agree with this analysis. First, although it is true that the first sentence refers to the users, their awareness would have been no different from that of any objective bystander. The second sentence makes this clear: it is difficult to conceive of anyone who could have imagined that the Sports Arena was other than a recreational area provided for use by the public for recreation. By "anyone", I think that the writer of the report was not confining himself to users: he meant, quite literally, anyone who knew the facts.
33. Secondly, even if the committee did take into account the subjective beliefs of the users, it seems to me to be very unlikely indeed that, if they had been told in terms that they could not take those beliefs into account, they would have arrived at a different conclusion on the implied permission issue. They had been advised correctly that if it was "apparent from the circumstances of the case that the land had been made available to the public, and that their use had not simply been tolerated but in effect encouraged", then a licence should be implied from the circumstances. In my judgment, there are no grounds for impugning this decision. It has not been suggested that the decision was perverse in the Wednesbury sense. For the reasons that I have given, to the limited extent that the committee did take into account irrelevant considerations. they were immaterial to their ultimate decision.
34. Accordingly, I would dismiss this appeal.

MR JUSTICE WILSON:

I agree.

LORD JUSTICE LATHAM:

I also agree.

ORDER: Appeal dismissed; Section II Liability; Legal Services Commission assessment; permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)