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R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC31 (summary, full judgment).
The Supreme Court has ruled that land at Helredale, on the south-east side of Whitby in North Yorkshire, cannot be registered as a village green.
In October 2007 the Helredale Neighbourhood Council applied to register 14 hectares of land ( known as the Field) owned by Scarborough Borough Council, as a green, on the basis of 20 years’ use by local people for lawful sports and pastimes, without permission or challenge.
North Yorkshire County Council, the registration authority, held a public inquiry. The inspector, Vivian Chapman QC, concluded in July 2010 that the use of the land had not satisfied the criteria under section 15(2) Commons Act 2006, because the use had not been ‘as of right’ (ie without permission or challenge), but that in effect the public already had permission to use the land. This was because the borough council’s predecessor, the Whitby Urban District Council, had acquired the land in 1951 for housing and had laid out the Field as a recreation ground under section 80(1) of the Housing Act 1936 (now section 12(1) of the Housing Act 1985).
In October 2010 North Yorkshire County Council rejected the application and Christine Barkas applied for judicial review of that decision. Her application was unsuccessful in the High Court and the Court of Appeal dismissed her claim.
The point of principle considered by the Supreme Court was the meaning of ‘as of right’ and whether use could be ‘as of right’ when land is held under a statutory provision by a public body, ie under the Housing Acts.
The Supreme Court unanimously dismissed the appeal, and ruled that where land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreation and so their use is ‘by right’ rather than ‘as of right’.
The Supreme Court also decided that an earlier House of Lords judgment, known as Beresford, should no longer be relied upon.
Says Nicola Hodgson, our case officer who helped the Helredale Neighbourhood Council with its case: ‘This is a blow for village greens. The government has already outlawed registration of land which is threatened with development in its Growth and Infrastructure Act 2013. Now the courts are severely narrowing the opportunities for registration. All this is happening at a time when our green spaces have never been more important for public enjoyment, and never more threatened.’