The court considered whether the lease of part of Doncaster Common (not registered as such) fell within section 123(2A) of the 1972 Act.
Held: For over a century the public had, as of right, used Doncaster Common for what could be conveniently termed recreation. Even if the public’s use depended upon a bare licence, the Council would be obliged to comply with the section, unless reasonable notice of termination was given and had expired.
McCullough J said: ‘One further point remains. What quality of user ‘for purposes of public recreation’ is required before the land is ‘open space’ for the purposes of Section 123 (2A) of the Local Government Act 1972 as amended [which is a like provision to Section 122 (2A) in relation to disposal]? Mr Whybrow contends that it must be as of right, ie that user under a bare licence will not suffice. He suggests that any other construction would be absurd and inconvenient. I do not agree. Section 123 (2A) appears to have been enacted to protect the interests of those lawfully using open spaces. A bare licensee has no interest in land, but so long as his licence exists he has something which he can enjoy. It can only be brought to an end on giving him reasonable notice. In many cases such notice need only be very short, but it is possible to envisage circumstances in which a significant period would be required. Where a licence has been given, there is no hardship or absurdity in a council having to choose between postponing its disposal of the land until such notice has been given and expired and, alternatively, advertising the intended disposal in the way required.’
McCullough J
(1987) 85 LGR 233, (1986) 57 P and C R 1
Commons Registration Act 1965 1(2)(a), Local Government Act 1972 123(2A)
England and Wales
Cited by:
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Lists of cited by and citing cases may be incomplete.
Land
Leading Case
Updated: 11 November 2021; Ref: scu.192159