UKSC 31
On appeal from:  EWCA Civ 1373
R (on the application of Barkas) (Appellant) v North Yorkshire County Council and another (Respondents)
Lord Neuberger, President
Lady Hale, Deputy President
JUDGMENT GIVEN ON
21 May 2014
Heard on 2 April 2014
Douglas Edwards QC
(Instructed by Richard Buxton Environmental and Public Law)
Nathalie Lieven QC
(Instructed by North Yorkshire County Council Assistant Chief Executive Legal and Democratic Services)
George Laurence QC
(Instructed by Scarborough Borough Council Legal Services)
LORD NEUBERGER (with whom Lady Hale, Lord Reed and Lord Hughes agree)
The factual and legal background
"A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part-A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part "A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part—
(a) (a) (a) buildings adapted for use as shops,
(b) recreation grounds, and
(c) other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided."
(Denning J explained in a case on the effectively identically worded section 80(1) of the 1936 Act, HE Green and Sons v Minister of Health (No 2)  1 KB 34, 41, that the section did not require the use of "buildings", "recreation grounds" or "other buildings or land" to be restricted to "the persons for whom the housing accommodation is provided", and that the use could also validly extend to other members of the public.)
The procedural history
"(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2)…. applies.
(2) This subsection applies where –
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application."
The issue raised by this appeal
The meaning of "as of right"
"The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is 'as of right'; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not 'as of right.' Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence."
"… I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain…"
"[T]ime does not run for the purposes of prescription unless the activities of the owner (or occupier) of the putative dominant land can be objected to by the owner of the putative servient land. The notion that an easement can only be acquired by prescription if the activity concerned is carried on 'as of right' for 20 years, ie nec vi, nec clam, nec precario, would seem to carry with it the assumption that it would not assist the putative dominant owner if the activity was carried on 'of right' for 20 years, as no question of force, stealth or permission could apply."
Was the public use in this case "as of right"?
The proceedings in Beresford
The first point in Beresford: the meaning of "as of right"
The second point in Beresford: the effect of statute
Should Beresford be followed, distinguished or disapproved on the second point?
LORD CARNWATH (with whom Lady Hale, Lord Reed and Lord Hughes agree)
The "as of right" test in context
"It is a natural inclination to assume that these expressions, 'claiming right thereto' (the 1832 Act), 'as of right' (the 1932 Act and the 1980 Act) and 'as of right' in the 1965 Act, all of which import the three characteristics, nec vi, nec clam, nec precario, ought to be given the same meaning and effect. The inclination should not, however, be taken too far. There are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous." (para 34)
"Public rights of way are created by dedication, express or implied or deemed. Town or village greens on the other hand must owe their existence to one or other of the three origins specified in section 22(1) of the 1965 Act… 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." (para 40)
While I share Lord Neuberger's reservations on other parts of Lord Scott's speech, his observations on this point appear to me both valid and important.
"it was common ground that there was here a clearly delineated route, that it had been used for at least 20 years since at least May 1967, that it connected two public places and that the public use was sufficient in quantity throughout that period to constitute a public right of way." (Inner House p 362)
This was sufficient to meet the requirements of the relevant section 3(3) of the Prescription and Limitation (Scotland) Act 1973, by which a public right of way was established if it has been "possessed by the public for a continuous period of twenty years openly, peaceably and without judicial interruption…" Where members of the public have travelled regularly between two points along a defined route for twenty years, the natural and only reasonable inference was the assertion of a highway right.
"must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him."
It follows that, in cases of possible ambiguity, the conduct must bring home to the owner, not merely that "a right" is being asserted, but that it is a village green right. Where the owner is a public authority, no adverse inference can sensibly be drawn from its failure to "warn off" the users as trespassers, if it has validly and visibly committed the land for public recreation, under powers that have nothing to do with the acquisition of village green rights.
i) Over a number of years there had been discussion of a sports and recreation centre development, dating back to a "planning brief" of 1967.
ii) The Arena site was identified as "parkland/open space/major playing field" in the 1973 New Town Plan.
iii) The "most informative document in the archive" had been a handwritten draft report to the Corporation's Chief Officer's Committee, dated 1982, which showed that "at that time, the upgrading of the Arena was under consideration". It had referred to a 1977 board paper indicating 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'."
In 1980 the Board had requested that the level of publicity for the Arena should be increased, and "some minor works of improvement were carried out in anticipation of increased usage".
iv) The 1982 draft report advised that complete reconstruction of the Arena would be required if it were to be developed as an athletic field and football pitch, and that the alternative would be to leave the arena "in its current little-used condition until such time as a sports hall facility is built".
v) In 1989 the site was transferred to the Commission for New Towns ("CNT"). It was retained by them, as having potential for commercial use, when Princess Anne Park was transferred to the Sunderland City Council in 1991. Documents compiled by that council in 1992 and 1994 described the land respectively as "an amenity open space", and as "'an unused track' which belonged to the CNT and whose future use was uncertain".
vi) In 1996, the land was transferred to the council subject to a covenant restricting any future development to a community-related purpose. In 1998, the council granted planning permission for the erection of a College of Further Education on a site including the Arena, with a view to sale to the City of Sunderland College. The application to register the land as a village green, at the instance of a group of local residents including Mrs Beresford, followed shortly afterwards.
vii) The Director advised the committee (in terms no doubt reflecting legal advice) that the determining issue, in accordance with Sunningwell was whether the user had been "as of right", and that it was not enough to defeat the claim that the use had been tolerated by the landowner. He added:
"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…
[In this case] 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'…."
viii) The committee agreed:
"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."
"In my judgment, 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." ( 1 WLR 1327, para 45)
I have set out this reasoning in some detail, because in my view the approach of the authority, and that of Smith J, were unimpeachable in common sense and in law.
"in neither of these instances could acts of encouragement by the servient owner be relied on to contend that the user by the dominant owner had not been as of right. Such conduct would indeed strengthen the hand of the dominant owner…" (para 7)
Similarly, Lord Rodger noted that the authority "may ... have encouraged these activities", but commented:
"The mere fact that a landowner encourages an activity on his land does not indicate, however, that it takes place only by virtue of his revocable permission." (para 60)
"Here the conduct is in any event equivocal: if the land were registered as a town or village green, so enabling the public to resort to it in exercise of a legal right and without the need for any licence, one would expect the council to mow the grass and provide some facilities for those so resorting, thus encouraging public use of this valuable local amenity. It is hard to see how the self-same conduct can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council's licence." (para 7)
"I confess that I find it difficult to understand why the statutory approval of the corporation's new town plan 1973 by the minister, which had the effect of granting planning permission for the development of the land as 'parkland/open space/playing field', when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an 'appropriation' of the land as recreational open space in the sense in which Lord Walker used that word." (para 36)
I agree. If "appropriation" in that sense was required, then the new town plan provided it. However such legal analysis is not necessary to support the registration authority's decision. As I have said, on the material before them they were clearly entitled to reach the conclusion that the use by the public was implicitly approved by the corporation; indeed there was no reason to infer anything else.