Barkas 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 right’?’ The appellant now appealed on an argument not put before the judge at first instance.
Held: The appeal failed. Sullivan LJ said: ‘The Field was ‘appropriated for the purpose of public recreation’ by the UDC and its successor the Borough Council under an express statutory power to provide and thereafter maintain it as a recreation ground. Throughout the 20 year period the local inhabitants indulged in lawful sports and pastimes on the Field by right and not as of right.’
Commenting on the case of Beresford, Sullivan LJ said: ‘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.’
Richards, Sullivan, McFarlane LJJ
[2012] EWCA Civ 1373, [2013] 1 WLR 1521, [2012] WLR(D) 306, [2013] 1 P andCR 8, [2013] 1 EGLR 1, [2013] 2 EG 68, [2012] 44 EG 95, [2013] BLGR 32
Commons Act 2006 15
England and Wales
Appeal fromBarkas, 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 . .
CitedRegina 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: . .
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 . .

Cited by:
Appeal fromBarkas, 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 . .
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.
Updated: 01 April 2021; Ref: scu.465109