Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) Appellant
HOUSE OF LORDS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant)
THURSDAY 13 NOVEMBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
LORD BINGHAM OF CORNHILL
As Pill LJ rightly pointed out in R v Suffolk County Council, Ex p Steed (1996) 75 P & CR 102, 111:
It is accordingly necessary that all ingredients of this definition should be met before land is registered, and decision-makers must consider carefully whether the land in question has been used by the inhabitants of a locality for indulgence in what are properly to be regarded as lawful sports and pastimes and whether the temporal limit of 20 years' indulgence or more is met. These ingredients of the definition can give rise to contentious and difficult questions. But they do not do so in this case. The only difference between the parties, on which the appeal turns, is whether the admitted use of the land by the inhabitants of the locality for indulgence in lawful sports and pastimes for not less than 20 years was "as of right".
In Mills v Silver  Ch 271, which also concerned a private right, Dillon LJ acknowledged, at pp 279-280, that
At p 281 Dillon LJ added:
Parker LJ, at p 290, was of the same opinion:
In R v Oxfordshire County Council, Ex p Sunningwell District Council  1 AC 335 it was held by the House that the landowner's toleration of the local inhabitants' user of the land in question was not inconsistent with such user having been as of right, and so did not prevent registration of the land in question as a town or village green. As my noble and learned friends Lord Rodger and Lord Walker point out, some caution is required of English lawyers reading the Scottish authorities, since the applicable legislation is not the same and "tolerance" is used to mean not acquiescence but permission. It does however appear that the Scots approach to prescription, as applied to public rights of way, is close to the English. As the Lord President (Hope) put it in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035, 1041, in a passage expressly approved by the House of Lords (1993 SC (HL) 44, 47),
LORD SCOTT OF FOSCOTE
The issue in the present case is whether the use by the inhabitants was "nec precario". Was there an implied permission given by the landlord? If so, is use pursuant to an implied permission fatal to the contention that the inhabitants' use was "as of right"? How, if at all, does the fact that the Sports Arena was, throughout the period of use, public land held by public authorities for public purposes bear upon the answer to the question whether the use was "as of right". These questions raise some difficult issues. But let me start with the facts.
I respectfully agree with these comments.
The statutory provisions relating to public authority land used for the propose of public recreation
"Open space", as defined by section 80(1) of the 1981 Act, includes " any land used for purposes of public recreation". Under sub-paragraph (a) of section 21(1), land to which section 21(1) applies may be used by the development corporation "or by any other person, in any manner in accordance with planning permission". This provision demonstrates the breadth of the freedom that development corporations were intended to have in using or dealing with land they had acquired for their statutory purposes. Not only were they themselves free to use the land "in any manner in accordance with planning permission" but so too were any persons to whom they might transfer the land, nb " or by any other person".
"open space", as defined in section 20, includes "land which is used for purposes of recreation "
Section 123(2B)(b) of the Local Government Act 1972 enables open space land held under a 1906 Act trust to be disposed of freed from that trust.
There was no express reference in the Conveyance to the 1906 Act but the Court of Appeal thought it plain that the Act applied. Indeed counsel on both sides argued the case on the footing that that was so (see Sir Wilfrid Greene MR, at p 30). It seems to me, therefore, that the 1906 Act should not have been set to one side in the present case simply on the ground that in the documents relating to the transfer to the council no express reference to the 1906 Act can be found. It would be, in my view, an arguable proposition that if the current use of land acquired by a local authority were use for the purposes of recreation and if the land had not been purchased for some other inconsistent use and the local authority had the intention that the land should continue to be used for the purposes of recreation, the provisions of section 10 would apply (c/f counsel's argument in the Poole Corporation case, at p 27). But your Lordships cannot take the argument to a conclusion in the present case.
Was the use "as of right" for section 22(1)(c) purposes?
In short, the origin of a town or village green must be either statute or custom or 20 years' use. Dedication by the landowner is not a means by which a town or village green, as defined, can be created. So acts of an apparently dedicatory character are likely to have a quite different effect in relation to an alleged public right of way than in relation to an alleged town or village green.
It is sufficient, therefore, if the use is "apparently as of right". But, of course, if the users do have a personal belief in their right to use the land, so much the better.
LORD RODGER OF EARLSFERRY
Times change: in the course of the hearing of this appeal well-informed counsel on both sides referred your Lordships to a number of Scottish authorities on the acquisition of servitudes and public rights of way. In Mann v Brodie (1885) 10 App Cas 378, 385-387, Lord Blackburn analysed some of the differences between the English and Scots law on the topic. Lord Hoffmann referred to that discussion in R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335, 352. While exercising all due caution, and at the risk of disturbing the shade of Lord Cockburn, I believe that the Scottish authorities can provide some assistance in this case, at least by way of confirming the conclusion that I have already reached.
The First Division of the Court of Session, having concluded that the bus company had proved the existence of a public right of way for pedestrians, pronounced decree of absolvitor in their favour.
In dismissing the appeal to this House from the decision of the First Division, 1993 SC (HL) 44, 47A - D, Lord Jauncey adopted and approved both this passage from the opinion of Lord President Hope and the passage that I have quoted from the opinion of Lord President Normand in Marquis of Bute v M'Kirdy & M'Millan Ltd. Lord Jauncey went on to note, at pp 47H - 48A, that there is no principle of law which requires that there be conflict between the interest of the users of the right of way and those of a proprietor. If acquiescence could lead to a public right of way being established, "encouragement can even more readily be said to have the same consequences."
LORD WALKER OF GESTINGTHORPE
So to make a charge for entry to land is one way of making clear that entry is not as of right. The paying entrant would be there by licence, even though he would (as Lord Halsbury pointed out) have the right to complain if the landowner broke the terms of his contract.
(Lord Blackburn took a different view about acquiescencesee pp 817-818but the view expressed by Fry J seems to have prevailed.)
Lord Jauncey of Tullichettle quoted that passage with approval when the case came before your Lordships' House on a further appeal 1993 SC (HL) 44, 47; the rest of the House concurred in the speech of Lord Jauncey.
Mr Laurence QC (for the appellants) emphasised Lord Hope's repeated references (in the two passages set out above, and again at page 1042 L) to the need for the landowner to do something.
I respectfully agree with both these observations. Stocker LJ was making the same point as Dillon LJ, that in this context consent is not a synonym for acquiescence, but almost its antithesis: the former negatives user as of right, whereas the latter is an essential ingredient of prescription by user as of right.