House of Lords
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Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) Appellant
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
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant)
 UKHL 60
LORD BINGHAM OF CORNHILL
1. The issue in this appeal is whether the Sunderland City Council erred in law in refusing to register as a "town or village green" under the Commons Registration Act 1965 an area of land known as the Sports Arena ("the land") close to the town centre of Washington, Tyne and Wear. I am indebted to my noble and learned friends Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe for their summaries of the relevant facts and the history of these proceedings, which I gratefully adopt and need not repeat.
2. As defined in section 22 of the 1965 Act, before its amendment by section 98 of the Countryside and Rights of Way Act 2000, the expression "town or village green" means (for present purposes):
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".
3. In this context it is plain that "as of right" does not require that the inhabitants should have a legal right since in this, as in other cases of prescription, the question is whether a party who lacks a legal right has acquired one by user for a stipulated period. It is also plain that "as of right" does not require that the inhabitants should believe themselves to have a legal right: the House so held in R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335, 354, 356. It is clear law, as summarised in the last-mentioned decision, that for prescription purposes under the Prescription Act 1832, the Rights of Way Act 1932 and the 1965 Act "as of right" means nec vi, nec clam, nec precario, that is, "not by force, nor stealth, nor the licence of the owner": see pp 350, 351, 353-354. In this case there was no question of force or stealth. So the only question is whether the inhabitants' user was by the licence of the owner.
4. It was not suggested that the council had expressly licensed the inhabitants' use of the land, either in writing or orally. The argument was accordingly directed to whether it was ever possible to imply a licence by a landowner to use land in the manner prescribed by the statute and, if so, whether the facts here could properly be held to give rise to such an implication.
5. I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.
6. Authority, however, establishes that a licence to use land cannot be implied from mere inaction of a landowner with knowledge of the use to which his land is being put. In Davies v Du Paver  1 QB 184 , which concerned a private right, Morris LJ said, at p 210:
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),
7. Recognising that the authorities preclude reliance on mere inaction as giving rise to an implied licence to use the land, the council has placed reliance on its conduct in mowing the grass on the land and providing benches for the accommodation of spectators and other users of it. This, it was said, showed that the council was encouraging the public to use the land, from which its licence to do so could be implied. Both the mowing of the grass and the provision of benches are open to more than one explanation. But the argument is in my opinion open to a more fundamental objection. As already pointed out, the 1965 Act drew heavily on principles established under the Acts of 1832 and 1932, relating to private and public rights of way respectively, and 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. 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.
8. In the decision under challenge, 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 as of right. In her clear and helpful judgment ( 1 WLR 1327) Janet Smith J accepted that conclusion (pp 1340-1341). For reasons given by Dyson LJ with which Latham LJ and Wilson J agreed ( QB 874;  EWCA Civ 1218), the Court of Appeal was of the same opinion (pp 884-886). It is at this point that I respectfully differ from both the lower courts. Qualifying user having been found, there was nothing in the material before the council to support the conclusion that such user had been otherwise than as of right within the meaning of section 22 of the 1965 Act.
9. The foregoing paragraphs of this opinion are directed to the issue which was contested before the lower courts and debated between the parties on the hearing of this appeal. After the House had reserved judgment at the conclusion of oral argument, however, the House became concerned to explore the possibility that, on the special facts of this case, the inhabitants of the locality might have indulged in lawful sports and pastimes for the qualifying period of 20 years or more not "as of right" but pursuant to a statutory right to do so. Such use would be inconsistent with use as of right. Counsel were invited to make written submissions on the point, which had not been raised or investigated below, and the House heard further oral argument on it. The House is grateful to counsel for responding so fully to its invitation, and consideration has been given to every statutory provision which appeared to be potentially relevant. In the event, I do not find it necessary to review these provisions in detail since it is to my mind clear that none of them, on the facts found or agreed, can be relied on to confer on the local inhabitants a legal right to use the land for indulgence in lawful sports and pastimes. Indeed Mr Petchey for the council, who had not himself sought to raise this contention earlier, found it hard to argue otherwise.
10. For these reasons and those given by my noble and learned friends Lord Scott, Lord Rodger and Lord Walker, I would allow this appeal.
11. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Walker of Gestingthorpe, and for the reasons which he gives, and also for the reasons given by my noble and learned friends, Lord Bingham of Cornhill and Lord Rodger of Earlsferry, I too would allow this appeal.
LORD SCOTT OF FOSCOTE
12. The issue in this case is whether the use by the local inhabitants of a piece of land, commonly known as the Sports Arena, at Washington, Tyne and Wear, has turned that land into a "town or village green", as defined by section 22(1) of the Commons Registration Act 1965. Section 22(1) defines "town or village green" as including
13. Three years ago your Lordships had to consider the same issue. The case was R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335. It was the first time your Lordships had had to consider the section 22(1) definition. The present case is the second time.
14. The main issue in the Sunningwell case was whether the inhabitants, whose use of the land for sports and pastimes was relied on as constituting the requisite use "as of right", had to use the land in the belief that they had the right to do so. The House held that they did not have to have a personal belief in their right to use the land. It was sufficient that their use of the land, objectively evaluated, appeared to be a use as of right. The issue that arises in the present case is different. The issue is whether a use that is tolerated, and indeed encouraged, by the landowner, can nonetheless be a use "as of right" for the purposes of section 22(1). The issue is complicated in the present case by the circumstance that the successive owners of the Sports Arena during the period over which the use relied on has taken place have been public authorities, holding the land for public purposes and whose tenure of the land has been subject to various statutory provisions whose relevance and effect I must later consider. Nonetheless, the core issue is whether the use relied on has been use "as of right".
15. The leading opinion in the Sunningwell case was given by my noble and learned friend, Lord Hoffmann. Each of the other members of the Appellate Committee agreed with his opinion. It contains a valuable and scholarly exposition of the historical provenance of the expression "as of right" in the 1965 Act that is as pertinent to this case as to Sunningwell. I cannot improve upon and need not repeat what Lord Hoffmann has said (see pp 349-355).
16. It is accepted that
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.
17. The Sports Arena is a grass arena of 10 acres or thereabouts. It was acquired by Washington Development Corporation (the "WDC") in the course of its development of Washington New Town pursuant to the New Towns Act 1965. The WDC's Washington New Town Plan 1973 identified the land as "parkland/open space/playing field". In 1974 the WDC, using excavated soil from the development of a shopping centre, laid out and grassed over the area. It would thereby have become recognisable as what is now the Sports Arena. It has never been fenced and it seems likely that public use of it for the purpose of recreation began shortly after the grassing over. In this litigation, however, the public recreational use contended for, and established by the evidence, is a use from 1977.
18. In 1977 the WDC installed a double row of wooden benches, sufficient to accommodate 1100 people, around the north, west and south perimeters of the Sports Arena. This was done in order to provide seating for the public on the occasion of a Royal visit. A non-turf cricket wicket was laid down in 1979. And over the years the Sports Arena has been used for various recreational activities, ranging from team games to the walking of dogs.
19. Title to the Sports Arena was, in 1989, transferred by the WDC to the Commission for the New Towns ("the CNT") and, in 1996, was transferred by the CNT to the Sunderland Council. Throughout the period since the Sports Arena was grassed over in 1974, the owners for the time being, first the WDC, then the CNT and, since 1996, the council, have mowed the grass in the summer.
20. On 24 December 1998 the council granted planning permission for the erection of a college of further education on land which includes the Sports Arena. It is common ground that the council wants to dispose of the land for use for that purpose. This proposal has been opposed by a number of local residents who have been accustomed to use the Sports Arena for recreational activities and who want to go on doing so. Their opposition to the grant of planning permission having failed, they made an application on 18 November 1999 for the Sports Arena to be registered under the 1965 Act as a town or village green. The 1965 Act requires every "registration authority" to maintain a register of town or village greens (section 3(1)(b)). The registration authority for the area where the Sports Arena is situate is the council (section 2(1)(a)). Section 13 of the 1965 Act enables the register to be amended where any land becomes a town or village green. The applicants' contention is that the Sports Arena has become a town or village green as a result of the requisite use of it by local inhabitants for at least 20 years. The council refused the application. They did so on the ground that the local inhabitants' use of the Sports Arena for recreational purposes had not been "as of right" but pursuant to an implied permission given by the landowners. Therefore, it was said, the use was not "nec precario".
21. An application was made by the appellant for judicial review of the council's refusal of the registration application. Smith J  1 WLR 1327 refused the application. She held that the use had been pursuant to an implied permission and that that was sufficient, on the facts of the case, to disqualify the use from being "as of right". She took into account that the land was publicly owned:
I respectfully agree with these comments.
22. The Court of Appeal  QB 874 dismissed the appeal. Dyson LJ, with whose judgment the other two members of the court agreed, held, first, that as a matter of principle a claim that land had been used "as of right" could be defeated by showing that the use had been pursuant to an implied permission and, second, that the council's conclusion that there had been an implied permission was a conclusion the council, on the facts of the case, had been entitled to reach. On the point regarding the public ownership of the Sports Arena, Dyson LJ, while agreeing with Smith J that the public ownership was relevant, expressed the view that
23. On the further appeal to your Lordships' House, Mr Laurence QC, who had not appeared below, concentrated on attacking the proposition that use pursuant to an implied licence or permission could ever suffice to defeat a claim that the use was "as of right". An express licence or permission was, he said, essential. Mr Petchey, counsel for the respondent council, contended in answer, that an implied licence would suffice to defeat an "as of right" claim and that the public use of the Sports Arena had been "precario". Neither counsel dealt with the implications of the public ownership of the Sports Arena. This point emerged later and the appeal was, therefore, restored for further written and oral submissions on the point.
The statutory provisions relating to public authority land used for the propose of public recreation
24. The New Towns Act 1981 (a consolidating Act) sets out the functions and powers of development corporations such as the WDC and the CNT. Section 21(1) applies to:
"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".
25. Part II of the 1981 Act provides for the eventual dissolution of a development corporation and the vesting of its property in the CNT (section 41). The function of the CNT is to "hold, manage and turn to account" the property of development corporations transferred to them under the Act (section 36(1)). The CNT must have regard, inter alia, to the "convenience and welfare of persons residing, working and carrying on business" in the new town (section 36(2)(a)).
26. These provisions seem to me to give rise to a number of issues on the facts of the present case. Does section 21 apply to land which was not, when acquired by the development corporation, being used for public recreation but where use for that purpose commenced after its acquisition? Mr Petchey expressly disclaimed, in answer to a question from me, any reliance on section 21(1). In view of that disclaimer your Lordships cannot decide the point on this appeal. But, with respect to counsel, I do not think the answer to the point is plain. The Sports Arena was, at the date when the WDC transferred it to the CNT and at the date when the CNT transferred it to the council, land "used for purposes of public recreation" ie an "open space" as defined. The land had been acquired by the WDC for the purposes of the Act (or its statutory predecessor). So why does section 21(1)(a) not apply and entitle the council to use the land "in any manner in accordance with planning permission?" This question your Lordships must leave unanswered.
27. Sections 122 and 123 of the Local Government Act 1972 relate to land which has been acquired by a "principal council". The respondent council is a principal council (see section 270(1)). Section 122(2A) (added by amendment under the Local Government, Planning and Land Act 1980) deals with the power of a principal council to appropriate land of various descriptions including "open space" land to other uses. Section 123(2A) (also added by amendment under the 1980 Act) deals with the power of a principal council to dispose of "open space" land. "Open space" is given the same definition as appears in the 1981 Act, and includes land "used for the purposes of public recreation" (see section 270(1) of the 1972 Act and section 336(1) of the Town and Country Planning Act 1990). The two sections, 122 and 123, prescribe, however, special procedures that a council must follow if the "open space" land is to be appropriated to some other purpose or disposed of (as the case may be). The procedures include advertising the council's intention, allowing time for objections from members of the public and the giving of due consideration to any objections.
28. It was, as I understood it, suggested by Mr Laurence that if the "open space" land had achieved the status of a 1965 Act town or village green, then, notwithstanding the disposal of the "open space" land by a principal council, the section 123(2A) procedures having been duly complied with, the land would retain its status as a town or village green under the 1965 Act. Mr Petchey did not contend that this was wrong. Your Lordships do not need to decide the issue on this appeal but, speaking for myself, I regard the proposition as highly dubious. An appropriation to other purposes duly carried out pursuant to section 122 would plainly override any public rights of use of an "open space" that previously had existed. Otherwise the appropriation would be ineffective and the statutory power frustrated. The comparable procedures prescribed by section 123 for a disposal must surely bring about the same overriding effect.