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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Beresford, R (on the application of) v City Of Sunderland [2000] EWHC Admin 418 (14 November 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/418.html
Cite as: [2000] EWHC Admin 418, [2001] 1 WLR 1327
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QUEEN v. CITY OF SUNDERLAND A ppellant EX PARTE PAMELA BERESFORD [2000] EWHC Admin 418 (14th November, 2000)
CASE NO: CO/2064/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
ROYAL COURTS OF JUSTICE
STRAND, LONDON,
WC2A 2LL
Tuesday, 14 November, 2000
MRS JUSTICE SMITH
-------------------
-V-
THE CITY OF SUNDERLAND
Appellant
Respondent
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
Mr D. Edwards (instructed by Southern Stewart & Walker 157 Prince
Edward Road, South Shields, Tyne & Wear) for the Appellant
Mr P. Petchey (instructed by Mr. Colin Langley, City of Sunderland,
Civic Centre, Sunderland SR2 7DN) for the Respondent
Judgment
As Approved by the Court
Crown Copyright ©
MRS JUSTICE SMITH:
Introduction.
1. This is an application for judicial review, brought by permission of Moses
J, of the decision of the Licensing Committee of the Council of the City of
Sunderland on 27th April 2000, when they refused the application of
Mrs Pamela Beresford and 3 other residents of Washington, Tyne and Wear, to
have registered land known as the `Sports Arena' at Washington, as a town or
village green pursuant to section 13 of the Commons Registration Act 1965 (the
Act).
2. The Act provides a statutory framework for the registration of common land
and town and village greens. Under section 2, local authorities were
appointed as registration authorities for the purposes of the Act and by
section 3 are required to maintain a register of common land and town and
village greens within their area. Washington is within the City of Sunderland.
3. The Act and regulations made thereunder provided that all common land and
town and village greens were to be registered within 5 years. Any land not so
registered by 2nd January 1970 was deemed not to be common land or a
town or village green. However, by Section 13 of the Act, the register could
be amended to include any land which became common land or a town or village
green after that date. An application to amend the register was to be made to
the registration authority. Any person aggrieved by the inclusion of any land
by amendment of the register has, by section 14, a right of appeal to the
Chancery Division of the High Court. There is no right of appeal against a
refusal to amend the register.
4. By section 22, a `town or village green' is defined as land which has been
allocated 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 or pastimes or on which the inhabitants of
any locality have indulged in such sports or pastimes as of right for not less
than 20 years. The application in the present case was based on the
contention that the inhabitants of Washington had indulged in sports or
pastimes on the Sports Arena as of right for more than 20 years. The Council
of the City of Sunderland decided that although the inhabitants of Washington
had indulged in sports and pastimes on the Sports Arena for more than 20 years,
they had not done so `as of right' but with the permission or licence of the
landowner.
The facts.
5. The Sports Arena lies just south of the town centre of Washington. Since
1996 it has been owned by the City Council. Washington used to be a small
village but in about 1970 the Washington Development Corporation (WDC) bought
and redeveloped a substantial area of land pursuant to the provisions of the
New Towns Act 1965. A new town centre was laid out including, amongst other
things, a shopping centre and many community facilities including provision for
leisure activities. A park was created which was later to become known as the
Princess Anne Park. Adjacent to the park, but separated from it by a wooded
mound, there was laid out a grassed area which became known as the `Sports
Arena'. For the moment, I say nothing more about what the WDC then intended
should happen to this site in the future. From the time it was first laid out,
it has been used by the inhabitants of Washington (and others) for sports and
recreation.
6. In about 1977, the WDC erected two rows of wooden benches in a U shaped
formation round three sides of the arena. These have every appearance of being
intended for the use of spectators watching sporting events. In about 1979,
they installed an all-weather cricket wicket. Apart from that, the land is
just a grassy area; no pitches have ever been marked out; there are neither
goalposts nor a running track. The grass has always been kept mown at public
expense.
7. The WDC was wound up in 1989 and transferred all its assets to the
Commission for New Towns (CNT). These included the Princess Anne Park and the
Sports Arena as well as many other properties and sites. In 1991, the CNT
transferred all the community-related sites and buildings to the Local
Authority. These included the Princess Anne Park but not the Arena. That was
retained by the CNT because they regarded it as having some potential
commercial value. However in 1996, they transferred the Arena to the Local
Authority, subject to a covenant restricting any future development to a
community-related purpose.
8. In 1998, the Local Authority granted planning permission for the erection
of a College of Further Education on a site which incorporated the Arena. It
considered that such a project would satisfy the restrictive covenant. The
land was to be sold to the City of Sunderland College and the proceeds of sale
were to go, almost exclusively, to the CNT.
9. There was some local opposition to the planning application, in particular
from inhabitants who did not wish to lose the use of the Arena for sport and
recreation. A pressure group was formed, known as Washington First, of which
Mrs Beresford was a member and the group campaigned against the project. They
lost the first round of the fight, which ended with the grant of planning
permission. So, in November 1999, four members of the group, all inhabitants
of Washington, applied to the Council to amend the register to include the
Arena as a town green.
10. The Council delegated consideration of the matter to their Licensing
Committee.
The Director of Administration prepared a report setting out the history of the
land, so far as it could be ascertained from the available documents and
advising the committee as to the questions which the law required them to
answer in dealing with the application. On 27th March, the
Committee visited the site. On 27th April, they heard submissions
from the applicants and from objectors (mainly the City of Sunderland College).
They refused to amend the register to include the arena as a town green. As
there is no right of appeal against a refusal, the applicants designated Mrs
Beresford to seek judicial review.
The Material considered by the Committee.
11. The Director of Administration's Report comprised a description of the
site and, at section 2, an account of its history and status, so far as could
be ascertained from the available documents. These were few, probably because
of the changes in ownership and the dissolution of the WDC. However, the
archive contained the following:
(a) A 1967 Planning Brief from the Washington New Town's Chief Architect's
office from which it appears that a Sports and Recreation Centre was planned
which would include a sports hall, a swimming bath and an outdoor stadium, to
comprise an athletics track and football pitch with provision for seating.
(b) A document dated 1969 entitled `Proposal under section 6(1) of the New
Towns Act' which referred to a proposal in the `Master Plan Report' that there
should be a major amenity complex comprising a swimming bath, sports hall,
outdoor stadium and youth centre.
(c) The Washington New Town Plan of 1973, in which the Sports Arena site was
identified as parkland/open space/major playing field.
(d) The most informative document in the archive was a handwritten draft report
to the WDC's Chief Officer's Committee, dated 1982. This shows that at that
time, the upgrading of the Arena was under consideration. The draft report
recounted the history of the arena to that date. It referred to a Board (WDC)
paper 132/77 (presumably dated 1977) which said that until a sports complex
could be provided, the arena was to be used for `recreational sporting use and
other activities on a town scale such as jazz band parades, displays and
sporting events'. There was also reference to documents dated 1978 which spoke
of a 1977 `Scheme for Phased Development of a Town Centre Sports Complex' for
which the Arena would be developed to include a `tartan-type track and a
grandstand'. It was said that in 1980, the Board (WDC) had requested that the
level of publicity for the Arena should be increased; some minor works of
improvement were carried out in anticipation of increased usage. It said that
the Sports Turf Research Institute had advised that complete reconstruction of
the Arena would be required if the arena were to be developed as an athletic
field and football pitch. The WDC had the option of putting the work in hand
or leaving the arena `in its current little used condition until such time as a
sports hall facility is built'.
12. The Director's report referred to a 1983 report on `Open Space Recreation'
which confirmed that a stadium area had been created at Princess Park
Washington for the accommodation of a running track. The Director said that
the site had been transferred to the CNT in 1989 and had been retained by the
CNT in 1991, when the Princess Anne Park was transferred to the Council. An
Open Space Register compiled by the Council in 1992 described the land as `an
amenity open space'. An `Open Space Recreation Report' issued by the Council
in 1994 referred to the site as `an unused track' which belonged to the CNT and
whose future use was uncertain. The land was transferred to the Council in
1996 and planning permission granted in 1998. Finally the Director referred to
a stopping up order of a footpath crossing the site. This had been confirmed
in 1999.
13. The Director advised the Committee that in order to succeed in their
application, the applicants must show that the land had been used for lawful
sports and pastimes by the inhabitants of a locality, as of right, for at least
20 years. He explained that `as of right' meant `not by force, nor stealth nor
the licence of the owner'. He correctly summarised the effect of the decision
in R. v Oxfordshire County Council and others ex parte Sunningwell Parish
Council [1999] 3 WLR 160 in which the House of Lords had considered
the circumstances in which land could become a town or village green under the
Act. In particular he drew attention to Lord Hoffmann's statement that `mere
toleration and neighbourliness' on the part of a landowner were insufficient to
imply that a licence had been granted. A landowner who became aware that local
inhabitants were using his land for recreation and took no action would not be
able to claim the existence of a licence so as to defeat a claim for
registration under the Act.
14. Next the Director set out the application and summarised the supporting
evidence, which was annexed. This contained much material about the history of
the site, none of which was in any significant way in conflict with the
material which the Director had put before the Committee from the Council's own
archives. He summarised the objection received from the City of Sunderland
College. This conceded that the land had been in use as a recreation ground
since at least 1977 but focused on the contention that such user had not been
`as of right'. In brief, the College was saying that as the land had been
laid out as a recreation area by the WDC and had been maintained by the public
purse and as unrestricted access had been given, it was clear that access had
been given by the licence of the successive owners. He summarised the
applicants' response to the objection. They accepted that the original
intention was that the arena should be used as a sports and recreation area but
they did not accept that it had been maintained as such by the public purse.
The grass had been kept mown to keep the area tidy but the seating and paved
areas had not been maintained and were in a state of disrepair. The wicket had
been maintained by members of the community, who also collected litter. They
submitted that this was a case not of licence by the owners but of
`neighbourly toleration'. They relied on the Sunningwell case.
15. The Director advised the Committee as to how they should approach the
issue of whether user had been `as of right'. He said:
`In the case of Sunningwell it was held that toleration of the
use is not inconsistent with it being as of right. Thus it is not enough to
defeat a claim based on 20 years use that the use has been tolerated by the
landowner as it clearly has been in this case.
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
(sic) 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 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 made to the history
(referred to 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 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. ... `
The Decision.
16. After hearing submissions, the Committee resolved to refuse the
application and recorded their reasons as follows:
(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 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 Application for Judicial Review.
17. In the Form 86A, the applicant relied on three grounds. First, the
decision was vitiated by an error of law because an implied licence is not
sufficient to defeat a claim that user was `as of right'. There had to be an
express licence from the landowner, either oral or written. Second, in the
alternative, if an implied licence may be sufficient, the Committee had erred
in finding there was sufficient evidence of implied licence in this case in
that it had taken irrelevant matters into account. Third, it was said that the
determination of the applicant's rights under the Act could not properly be
determined by a Committee of a Council who had an interest in the subject
matter of the application. This was contrary to Article 6 of the European
Convention on Human Rights. Mr Edwards abandoned this third contention before
the hearing began. He accepted that the procedures followed were those laid
down by Parliament and that the decision in question had been taken before the
date (2nd October 2000) on which the Convention had been
incorporated into English law by the Human Rights Act 1998.
18. In his skeleton argument and at the hearing, Mr Edwards raised an
additional point, which it is convenient to deal with first. He submitted that
the first paragraph of the Director of Administration's advice to the Committee
on the meaning of the words `as of right' contained an admission that the
landowners had merely tolerated the use of the arena by the inhabitants for
sporting purposes. The Directors had said that it was not enough to defeat a
claim based on 20 years' user to show that the owner had tolerated the use -
`as it clearly has in this case'. He contended that this case was therefore on
all fours with the Sunningwell case, where at page 173/4 Lord
Hoffmann had said that toleration of user by a landowner was not inconsistent
with the user being as of right. Although Lord Hoffmann had there used a
double negative, he held that toleration by the landowner was consistent with
user as of right. In Sunningwell, the House directed that the
land in question should be registered as a village green on the basis of 20
years' use tolerated by the landowner.
19. I cannot accept this submission. In my view, the first paragraph of the
Director's advice cannot be read in isolation. When one reads the whole
section and in particular notes the third paragraph, it is plain that the
Director was saying that, at the very least, the WDC and Council had tolerated
the use of the land for recreation but it was for the Committee to decide
whether they had gone beyond toleration and had licensed the user. There was
no admission that the owner's attitude had been mere toleration. In any event,
it was for the Committee to make the findings of fact in the case and the
Director had no power to make any admissions.
The First Ground.
20. I turn to the first main issue. Is an implied licence sufficient to
defeat a claim made `as of right' under the Act or must the licence be express?
Mr Edwards began from the established proposition that mere toleration is not
inconsistent with user as of right: see Sunningwell. Something
more than mere toleration, namely a licence or permission by the landowner, is
required to defeat such a claim. The grant of permission requires two
essentials. First, an intention or understanding in the mind of the landowner
that he in fact permits the user of the land. Second, there must be an
expression of that intention.
21. I do not understand Mr Petchey for the respondent to disagree with those
propositions save that he submits that the expression of intention may be
inferred from the circumstances and from the landowner's actions whereas Mr
Edwards contends that the expression of intention must be articulated in words,
either written or spoken.
22. Mr Edwards submitted that the giving of permission connotes a
communication between the giver of the permission and the person who is to use
the land in reliance on it. However, he accepted that it was not necessary for
the permission to be communicated to all users: see Sunningwell
supra and R v Secretary of State for the Environment ex parte Billson
[1998] 2 AER 587. The state of mind of the users is irrelevant.
User as of right must be established objectively. In the light of those
authorities, he accepted that communication to the users is not necessary.
However, he submitted that it does not follow from Sunningwell
and Billson that there is no need for the permission to be
express. In Billson, a case under section 31 of the Highways
Act 1980, Sullivan J held that a landowner's intention not to dedicate a track
as a public right of way, so as to satisfy the proviso to the section and to
defeat an otherwise established claim of user as of right, must be demonstrated
by an overt and contemporaneous act. Mr Edwards submitted that by analogy with
the situation under the proviso to section 31, the grant of permission must be
overt. That may be; I would accept that there must at least be something
overt from which permission could be inferred. But Billson is
not authority for the proposition that a permission sufficient to defeat a
claim of user as of right must be express. Sullivan J did not say that such
permission had to be overt and contemporaneous. The requirement for an overt
action related to the demonstration of an intention not to dedicate the way to
the public for the purposes of the proviso. Nor does the case help on the
question of whether a permission must be express. It was express in that case
so the question did not arise.
23. Mr Edwards submitted that his contention must be correct, as otherwise
`iniquitous' consequences would flow. If there were no requirement that a
landowner's licence must be express, it would be possible for a landowner to
tolerate the user for many years and then, when an application for registration
were made, to be able to claim that he had silently permitted the user all
along. This would make the administration of the scheme of registration under
the 1965 Act unworkable. Mr Petchey submitted that no such difficulties would
arise. The decision maker would not find that there was an implied permission
unless it was apparent from the circumstances.
24. I will deal with this point now. I do not accept that any iniquitous or
even undesirable consequences would follow from permitting a landowner to say,
in answer to a claim of user as of right, that he had permitted the user and
that permission could be inferred from the circumstances. In my view, no
special difficulties would arise in the administration of a scheme in which
such an argument could be raised. The decision- maker would not make the
finding of implied permission unless the evidence warranted it. Judges,
tribunals and committees make decisions based on inference every day and,
although they are not always easy, there is nothing unusual, let alone
iniquitous, about requiring them to be made.
25. Mr Edwards submitted that although there is no authority directly on
the point of whether permission must be express or may be implied, either under
the 1965 Act or under the Prescription Act 1832 or the Rights of Way Act 1932
or its successor the Highways Act 1980, (in each of which the same expression
`as of right' or equivalent words are used), the reported cases contain a
number of dicta which support his contention.
26. Before considering the authorities, I find it convenient to mention Mr
Petchey's two main contentions. These are first, that the established law
relating to the quality of user which must be established to show user as of
right is that it must be without force, without stealth and without permission.
There is no stipulation in the old cases (or for that matter the recent ones)
that the permission must be express. The concept of the implied licence is
well known to the law. At Paragraph 17-003 of the Sixth Edition of Megarry
and Wade's The Law of Real Property, it is stated that a bare licence may be
express or implied. In Davis v Lisle [1936] 2 KB 440 Goddard J,
as he then was said at page 440:
`I think that it cannot be denied that when you have such premises as there are
here - an open garage or, indeed where you have a shop with an open door -
there is an invitation to all persons having business with the owners of the
premises to go to the premises and enter the premises'
Also in Robson v Hallett [1967] 2 QB 939 Diplock J, as he then
was, said at page 953:
`When a householder lives in a dwelling house to which there is a garden in
front and does not lock the gate of the garden, it gives an implied licence to
any member of the public who has lawful reason for doing so to proceed from the
gate to the front door or back door and to inquire whether he may be admitted
and to conduct his lawful business'.
27. Mr Petchey submitted that as implied licences are known to law, there is
no reason in principle why an implied licence should not be enough to defeat a
claim of use as of right.
28. Second, Mr Petchey submitted that there were many situations in which land
was available for the public to use in circumstances which no one would imagine
could ever give rise to prescriptive rights. He gave as examples a London
Square or a public park, such as the Princess Anne Park in Washington, which
was open to the public every day of the year and at all times of the day and
night. Yet, no one would suggest that by using it the public might acquire
prescriptive rights and that the land might become a town green. The
explanation, he submits, is that such places are made available to the public
by the implied permission of the Local Authority landowner.
29. I find Mr Petchey's submissions persuasive. My instinctive reaction to
the suggestion that an implied licence could not be sufficient to defeat a
claim of user as of right was to wonder why ever not. On being told that there
was no authority on the point, I wondered whether that was because the point
was trite law. However, as I have to decide the point, I must consider what
light is thrown on the subject by the authorities.
30. I turn first to the authorities which Mr Edwards submitted tend to support
his contention. These are cases under the Prescription Act 1832 and the Rights
of Way Act 1932 and its successor, section 31 of the Highways Act 1980 but it
is common ground that the expression `as of right' has the same meaning under
all those Acts as under the Act of 1965. In Bright v Walker
[1832] 1C.M.&R 211, the first reported case under the Prescription
Act 1832, Baron Parke explained the purpose and operation of the Act. At page
219, he set out section 2:
`No claim which may be lawfully made at the common law by custom, prescription
or grant to any way or other easement ...... when such way or other matter
... shall have been actually enjoyed by any person claiming right thereto
without interruption for the full period of twenty years, shall be defeated or
destroyed by showing only that such way or other matter was first enjoyed at
any time prior to such period of twenty years; but nevertheless, such claim may
be defeated in any other way by which the same is now liable to be defeated ;
.....
He continued:
`In order to establish a right of way and to bring the case within this
section, it must be proved that the claimant has enjoyed it for the full period
of twenty years and that he has done so `as of right', for that is the form in
which ... such a claim must be pleaded; and the like evidence would have been
required before the statute to prove a claim by prescription or non-existing
grant. Therefore if the way shall appear to have been enjoyed by the claimant,
not openly and in the manner in which a person rightfully entitled would have
used it, but by stealth as a trespasser would have done - if he shall have
occasionally asked the permission of the occupier of the land - no title
would be acquired, because it was not enjoyed `as of right'. .... 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 a licence written or parol, for a limited
period comprising the whole or part of the twenty years, or .....
31. From this passage Mr Edwards seeks to draw the conclusion that Baron Parke
was there saying that in cases of prescription both at common law and under the
new Act, a licence would only be effective to defeat a claim `as of right' if
the licence had been express, that is either written or parol. However, he
accepts that the case in question did not turn on any question of licence at
all. In my view, Baron Parke was providing a general summary of the new Act
and was not considering the nature of the licence which might be relied on. I
do not find this passage of any assistance.
32. Mr Edwards took me though a number of other old cases from which I shall
not cite at any length. The first was Mills v Colchester Corporation
[1867] LR 2 CP 476, (per Willis J at page 486) and the second
Earl de la Warr v Miles [1881]17 Ch D 535. He drew my
attention to two passages from this, first from the judgement of Brett LJ at
page 591 and second from that of Cotton LJ at page 598. However, all the
passages cited are no more than general statements of the law on what must be
proved to show user as right. For example Cotton LJ said:
`You must see whether the acts have been done as of right, that is to say, not
secretly, not as acts of violence, not under permission from time to time given
by the person on whose soil the acts were done'.
None of the passages cited throw any light at all on whether an implied licence
would be sufficient or whether the licence must be express.
33. The next case relied on was Gardner v Hodgson's Kingston Brewery
Co [1903] AC 229. In that case, the plaintiff claimed under section 2
of the Prescription Act 1832 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 road. She acknowledged that the annual
sum of 15 shillings had always been paid but alleged that this was a payment
towards the upkeep of the yard. The defendant contended that the annual
payment was for a licence to use the right of way. There was no evidence of
any agreement whether in writing or oral. In the courts below there was some
judicial difference of opinion as to the inferences which should be drawn from
the evidence. But in the House of Lords, there was a unanimous view that the
plaintiff had not discharged the burden upon her of establishing that the user
had not been in pursuit of a licence. Mr Edwards cited this case only to
demonstrate that the use of the words `claiming right thereto' in section 2 of
the Act of 1832 had the same meaning as the expression `as of right': per Lord
Lindley at page 239. In that he is plainly right. However, another passage is
of some assistance. On the same page 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. .... 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 of the present case.'
34. That passage, from which there was no dissent, appears to envisage that
the quality of the user or enjoyment may be inferred from the circumstances.
It is true that in that case there was a payment and the difficulty arose
because there was no evidence of the origin of the payment; the circumstances
surrounding it were open to two interpretations. But when Lord Lindley said
that `the enjoyment must be inconsistent with any other reasonable inference
than that it has been as of right' he must have meant that it was permissible
to look at the circumstances of the enjoyment to see whether the enjoyment had
been as of right. This is in my view inconsistent with Mr Edwards' submission
that a licence must be express, given orally or in writing.
35. Finally, Mr Edwards referred me to Merstham Manor Ltd v Coulsdon
and Purley UDC [1937] 2 KB 77 where in the context of a claim under the
Rights of Way Act 1932, Hilbery J said at page 83:
`I think it right, therefore, to hold that where the words `as of right' are
used in the Rights of Way Act 1932, in connection with the actual enjoyment,
they are satisfied if the evidence shown that the actual enjoyment given has
been open, not by force and not by permission from time to time given.'
However, read in context, all that Hilbery J was saying was that the words `as
of right' meant the same in the 1932 Act as they had been held to mean under
the Prescription Act 1832.
36. I am unable to accept Mr Edwards' submission that an examination of the
authorities supports his contention. In my view, the authority of
Gardner v Hodgson points, albeit inconclusively, to the opposite
conclusion.
37. Mr Edwards also referred me to Megarry and Wade's Chapter on Easements.
At paragraph 18-126 the editors observe:
`Prescriptive rights are necessarily established because of the acquiescence or
tolerance of the landowner over whose property they are exercised. If a
reasonable person would appreciate that A was asserting a continuous right of
enjoyment over B's land and B did nothing to resist it, he would be taken to
have assented to A's conduct and his acquiescence or tolerance would not make
the exercise of that right permissive.'
The editors there recognise that acquiescence will usually be established as a
matter of inference from the circumstances. In my view it would be strange if
permission could not also be inferred from the circumstances. There may be a
case in which there is no express permission and in which some of the
circumstances point towards acquiescence and some towards permissive user. It
would be a remarkable situation if the only conclusion open to the
decision-maker were that this was a case of acquiescence, that all the pointers
towards permission must be disregarded and only the pointers towards
acquiescence taken into account.
38. Since the conclusion of the hearing, I have also considered the case of
Mills v Silver [1991] Ch 271 a decision of the Court of Appeal,
to which I was not referred. Mills concerned a claim to a right
of way over a track leading to a hill farm in the Welsh borders. The judge at
first instance had found that `toleration' by the landowner of the user had
been such as to defeat the claim to user as of right. The Court of Appeal
held that he had erred in drawing a distinction between `tolerance' (which the
judge held could defeat a claim of right) and `acquiescence' which was the
hallmark of user as of right. On the evidence there was acquiescence. The
case is instructive in that there was some discussion, particularly in the
judgement of Stocker LJ about the confusion which had arisen in the reported
cases from the use of the word `toleration'. In summary, Stocker LJ said that
the word `toleration' had sometimes been used to connote implied permission but
examination of the authorities as a whole showed that `toleration' should be
used as a synonym for `acquiescence'. In essence he was saying that the word
`toleration' was not to be understood to import implied permission. However,
it is apparent that the concept of implied permission was recognised.
39. The report contains a number of references to implied permission. For
example at page 275B, counsel for the defendants (the users of the way) argued
that in considering the question of tolerance, the judge had asked himself the
wrong question. He should have asked himself `whether there had been
permission, express or implied'. Again at page 276F counsel for the owner of
the servient tenement submitted that tolerance or good neighbourliness was
enough to defeat the claim but the basis of the submission was that the judge
could infer permission from such tolerance. At page 279, Dillon LJ posed the
question for the court as being whether the good neighbourly tolerance of the
servient owners precluded a prescriptive right being acquired, even though no
express permission had been granted to the user and no restriction had ever
been placed on the user. In other words, the question included a consideration
of whether in that case the good neighbourly tolerance amounted to an implied
licence which would defeat a claim of use as of right. Dillon LJ expressed
his conclusions in terms relating only to the instant case, saying that the
evidence pointed to acquiescence which was the hallmark of user as of right.
But he did not say that there was no such thing as an implied licence or that
an implied licence could not amount to permission such as would defeat a claim
to user as of right. If the law were that permission sufficient to defeat a
claim to user as of right had to be express, one might have expected him to say
so, as indeed one might have expected Lord Hoffmann to say so in
Sunningwell.
40. Stocker LJ thought that the judge had erred in drawing a distinction
between the word `toleration' and `acquiescence', on the basis that toleration
would defeat a claim of right whereas acquiescence would not. After
considering the case law, he said at page 293 B:
`It seems clear from the passage of the judgement cited by Dillon LJ that the
judge in the instant case failed to recognise the very limited circumstances in
which the word `toleration' has been used in the cases cited which might be
summarised as relating to the exercise of a purported right which was casual or
trivial or in respect of which some form of consent for the user was
established so that acquiescence did not arise' (my emphasis).
41. It seems to me that Stocker LJ tacitly accepted that conduct and
circumstances might give rise to an inference that permission had been granted
which would be sufficient to defeat the claim of user as of right.
42. My conclusion is that a licence or permission inferred from the
circumstances of the case may be sufficient to defeat a claim to user as of
right. I reach that conclusion in respect of the Commons Registration Act 1965
but I can see no reason why the same conclusion should not apply to the
Prescription Act 1832 and section 31 of the Highways Act 1980. My reasons are
first that as an implied licence is recognised by law, there is no reason in
principle why the effect of such a licence should be different from an express
permission. I accept Mr Petchy's submission that the reason why many places
which are open to the public do not become common land or town or village
greens is that their availability to the public is consequent upon an implied
permission which prevents the accrual of prescriptive rights. There is nothing
in the authorities to which I have referred which supports the contention that
an express licence is necessary. Indeed such help as there is points to the
opposite conclusion.
43. In a case where there has been no express permission, the decision-maker
who has to consider whether user (which satisfies the requirements as to length
of time etc) has been as of right, should ask himself whether a reasonable
person (with the knowledge which is available to him on the evidence) would
have appreciated that the user was with the permission of the landowner or only
with his acquiescence. In general, the history of the land and its status
will be important as will be such factors as the provision of any facilities on
it. In practice, if permission is to be shown, there will have been some overt
act by the landowner or demonstrable circumstances from which the inference can
be drawn, although it may well be that the users were unaware of these matters.
The second issue.
44. Mr Edwards's alternative submission was that, if an implied licence could
suffice to defeat a claim of user as of right, the Committee's decision that
user in this case had been by implied licence was vitiated by their inclusion
into their consideration of irrelevant factors. He submitted that they had
taken four matters into account: (a) that the land in question was publicly
owned; (b) that the land was laid out as an arena with seating, (c) that it was
adjacent to Princess Anne Park and (d) that it was maintained by the Council.
Of these he submitted that (a) and (c) were irrelevant.
45. The first he said was irrelevant because there was no reason why publicly
owned land should not become common land or a town green by long user as of
right. That I accept but that does not mean that the fact of public ownership
was an irrelevant consideration. In my judgement, the fact that land is in
public ownership is plainly a relevant matter when one is considering what
conclusion a reasonable person would draw from the circumstances of user. It
is well known that local authorities do, as part of their normal functions,
provide facilities for the use of the public and maintain them also at public
expense. It is not part of the normal function of a private landowner to
provide facilities for the public on the land. Public ownership of the land
is plainly a relevant consideration.
46. As to (c), I would accept that the fact that the land was adjacent to the
Princess Anne Park was irrelevant. However, in my view, one ought to read
the Committee's reasons as a whole. When so considered, it is apparent that
the Committee would have been bound to reach the same conclusion even if they
had ignored the proximity of Princess Anne Park. That factor was of no
relevance but I cannot see how taking it into account could have made the
slightest difference to the result.
47. In my view the background information as to the history and status of the
land was of some importance. This appeared to show that the WDC had in the
early days intended to develop the land as part of an outdoor sports facility.
But they did not have the money to carry out their plans at the time. So they
allowed the inhabitants to use the arena and encouraged such use by providing
such facilities as they could afford, rudimentary though they were. In 1980
they sought to encourage greater use by publicising the facility. Had this
history been fully documented as local authority decisions usually are, there
would have been an overwhelming case in favour of permissive user. It was only
because the documentation was incomplete and of uncertain provenance that the
Director of Administration had to caution the Committee against placing too
great reliance on it. He was wise to do so and the extent to which the
Committee did rely on it, as supporting evidence, was entirely appropriate.
48. For these reasons, this application for judicial review must be dismissed.
MRS JUSTICE SMITH: For reasons given in the judgment which has already been handed down this application for judicial review is dismissed.
MR PETCHEY: My Lady, I seek an order for costs. The position is that the applicant is legally aided, so in those circumstances I recognise it would not be appropriate to make a determination now. I ask for the usual order.
MRS JUSTICE SMITH: The usual order, which I am sure the associate will reflect properly.
You want legal aid taxation?
MR PHILLPOT: My Lady, yes. I do not seek to resist, of course, Mr Petchey's application. I do ask for legal aid application.
I do also have an application for permission to appeal. This may not come as a great surprise to your Ladyship. It is simply in relation to the first ground of review which is summarised helpfully at page 13 of the judgment at paragraph 20. Your Ladyship will recall the point about implied permission and whether or not that is sufficient to defeat a claim to an as of right user. Now, my application, your Ladyship, is based on both of the grounds of appeal; namely that this is a point with a real prospect of success. Also there is another compelling reason why the appeal should be heard.
MRS JUSTICE SMITH: You include the second because there really is no authority directly on the point.
MR PHILLPOT: That is the substance really of the first point. Your Ladyship's judgment is clear, and what I do not propose to do is to run through the arguments already heard in front of you, which are recorded clearly in the judgment. I simply make the point that where there is an absence of clear authority, it must at least be a realistic prospect --
MRS JUSTICE SMITH: What do you say about this Mr Petchey?
MR PETCHEY: I accept there is no authority on the point and I accept there is a point that comes under public importance.
MRS JUSTICE SMITH: I think I ought to let it go through. You may have leave.
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