Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another: SC 6 Mar 2014

The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that argument.
Held: The basic issues was ‘where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes ‘as of right’ within the meaning of section 15(2)(a) of the Commons Act 2006?’
Held: The residents’ appeal failed. The local residents were enjoying the rights over the land ‘by right’ and not ‘as of right’ and the land was not registrable under the 2006 Act as a town or village green.
Lord Neuberger said: ‘So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of user ‘as of right’ can arise.’ and ‘ a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors.’
. . And: ‘ if the landowner has in some way actually communicated agreement to what would otherwise be a trespass, whether or not gratuitously, then he cannot claim it has been or is unlawful – at least until he lawfully withdraws his agreement to it. For the same reason, even if such an agreed arrangement had continued for 20 years, there can be no question of it giving rise to a prescriptive right because it would clearly have been precario, and therefore ‘by right’.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Reed, Lord Carnwath, Lord Hughes
[2014] 3 All ER 178, [2014] UKSC 31, [2014] HLR 36, [2014] 2 WLR 1360, [2014] WLR(D) 228, [2014] BLGR 459, UKSC 2013/0035, [2015] 1 AC 195, [2014] HLR 36
Bailii, Bailii Summary, WLRD, SC Summary, SC
Commons Act 2006 15
England and Wales
Citing:
CitedHE Green and Sons v Minister of Health (No 2) 1948
On an application under the 1936 Ac, provided that the field benefited council tenants (which it clearly did) it did not matter that it also benefited other people within the local community.
Denning J said: ‘The next question is whether the . .
At AdminBarkas, Regina (on The Application of) v North Yorkshire County Council and Scarborough Council Admn 20-Dec-2011
The claimants sought to have registered as a town or village green land in Whitby which had been provided as a playing field by the Local Authority since 1934. The inspector had found that the use had not been ‘as of right’ as required by the 2006 . .
OverruledRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Appeal fromBarkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
CitedHall v Beckenham Corporation 1949
A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
CitedLewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
CitedGardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
CitedDalton v Henry Angus and Co 1877
Fry J said: ‘ . .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 . .
CitedLawrence and Another v Fen Tigers Ltd and Others CA 2012
Jackson LJ set out the way in which planning consents would affect whether actions amounted to a nuisance: ‘I would summarise the law which is relevant to the first ground of appeal in four propositions. (i) A planning authority by the grant of . .
CitedLambeth Overseers v London County Council HL 1897
The House was asked whether the county council, which owned and maintained a park under a power accorded by a local Act of Parliament, were in rateable occupation of it.
Held: Lord Halsbury said that: ‘there is no possibility of beneficial . .
CitedMills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
CitedCumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd SCS 1992
(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a . .
CitedCumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
ApprovedRegina v City of Sunderland, ex parte Beresford Admn 14-Nov-2000
A recreational area was claimed to be a common. The council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been . .

Cited by:
CitedNewhaven 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 . .
CitedWinterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
CitedAdamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Land, Local Government

Leading Case

Updated: 10 December 2021; Ref: scu.526192