Barkas v North Yorkshire County Council [2012] EWCA Civ 1373

[2012] EWCA Civ 1373Case No C1/2012/0297
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2011] EWHC 3653 (Admin)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE LANGSTAFF
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/10/2012
Before
LORD JUSTICE RICHARDSLORD JUSTICE SULLIVANLORD JUSTICE MCFARLANE
Between
BARKASAppellantNORTH YORKSHIRE COUNTY COUNCILRespondentSCARBOROUGH BOROUGH COUNCILInterested Party
Douglas Edwards QC (instructed by Richard Buxton Solicitors) for AppellantRuth Stockley (instructed by North Yorkshire County Council) for RespondentWilliam Hanbury (instructed by Scarborough Borough Council) for Interested PartyHearing Hearing date: 13 th September 2012
Judgment

The Issue

[1]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”? A non-lawyer would dismiss the distinction as a semantic quibble, but the correct legal answer is of considerable importance, both for local authorities and for those who apply under section 15 of the Commons Act 2006 (“the 2006 Act”) to register as a town or village green land which they may have used for many years for recreational purposes.[2]Section 15 of the 2006 Act provides, so far as material:
“15 Registration of greens (1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2)….. applies. (2) This subsection applies where – (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and (b) they continue to do so at the time of the application.” (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and (b) they continue to do so at the time of the application.”
[3]The Appellant’s application under section 15 to register the Helredale playing field at Helredale Road, Whitby in North Yorkshire (“the Field”) as a town or village green (TVG) was rejected by the Respondent because it accepted the conclusion of an independent Inspector, Mr. Vivian Chapman QC, that although the use of the Field met all of the other requirements of section 15(2), the local inhabitants’ use of the Field for recreational purposes had been “by right” and not “as of right”.[4]The Appellant accepts that if the correct position in law is, as the Inspector concluded, that the local inhabitants were using the Field by right, then the Field may not be registered as a TVG under section 15 because that section provides that the land must be used as of right in order to be registered.

The proceedings

[5]Langstaff J dismissed the Appellant’s claim for judicial review of the Respondent’s decision not to register the Field as a TVG: [2011] EWHC 3653 (Admin). Permission to appeal was refused on the papers, but on a renewed oral application before the Vice President, Mr Douglas Edwards QC (who did not appear before Langstaff J) advanced a new ground of appeal which had not been raised before Langstaff J. The Vice President granted permission to appeal on the new ground because of its general importance, but refused permission to appeal in respect of the remaining grounds, all of which had been argued before, and rejected by, Langstaff J.

Factual background

[6]There is no challenge to the Inspector’s factual conclusions that the Field, which he said “has all the appearance of a typical municipal recreation ground” was acquired by the Whitby Urban District Council (“the UDC”), the predecessor of Scarborough Borough Council, the Interested Party, (“the Borough Council”) in 1951 under section 73 of the Housing Act 1936 (“the 1936 Act”) as a site for the erection of houses for the working classes. Section 72(1) of the 1936 Act authorised the UDC to provide housing accommodation for the working classes by the erection of houses on any land so acquired. The Field was laid out and maintained by the UDC as a recreation ground under section 80(1) of the 1936 Act, which provided:
“80 (1) The powers of a local authority under this Part of this Act to provide housing accommodation, shall include a power to provide and maintain with the consent of the Minister and, if desired, jointly with any other person, in connection with any such housing accommodation, any building adapted for use as a shop, any recreation grounds, or other buildings or land which in the opinion of the Minister will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.”
[7]These provisions in the 1936 Act were consolidated without material amendment, save for the deletion of the requirement that the housing should be provided for “the working classes”, in the Housing Act 1957, and are now contained in the Housing Act 1985 (“the 1985 Act”). Section 12(1) of the 1985 Act provides:
“12. Provision of shops, recreation grounds, etc. (1) A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part – (a) Buildings adapted for use as shops, (b) Recreation grounds, and (c) Other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.” (a) Buildings adapted for use as shops, (b) Recreation grounds, and (c) Other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.”
[8]The application to register the Field as a TVG is dated 12th October 2007. There is no dispute that the Field was maintained as a recreation ground by the Borough Council under section 12 of the 1985 Act for the relevant 20 year period from 1987 – 2007.

The Inspector’s approach

[9]Against this factual background the Inspector said in paragraphs 124 and 125 of his report:
“124 The question that arises is whether local people had a legal right to use a recreation ground which was set out under s. 80 of the 1936 Act and (during the relevant 20 year period) maintained under s. 12 of the 1985 Act as a recreation ground open to the public. The Open Spaces 1906 Act created by s. 10 an express statutory trust for public recreation. However, there is authority that where a statute empowers a local authority to acquire and lay out land for public recreation, the public have a legal right to use it. This point has been explored in relation to Public Health Act 1875 s. 164 (which contains no express trust for public recreation) in a series of cases: A-G v Loughborough Local Board The Times 31st May 1881 Hall v Beckenham Corporation [1949] 1 KB 716 Sheffield corporation v Tranter [1957] 1 WLR 843 Blake v Hendon Corporation [1962] 1 QB 283 The same principle must apply to a recreation ground laid out under statute as an area for public recreation on a council estate. Council tenants, who are the primary objects for the provision of recreation, must have had a legal right to use the land for harmless recreation. It would be absurd to think of them as trespassers unless they first obtained the permission of the council to use the land for harmless recreation. Where the recreation ground, as in the present case, is laid out and maintained as a recreation ground open to the public pursuant to statutory powers, it seems to me that the public must similarly have a legal right to use the land for harmless recreation. Again, it would be absurd to regard them as trespassers. This view is supported by the obiter comments of Lord Walker in para. 87 of Beresford. I therefore consider that at least until 2003, when [the Borough Council] ceased to be owner of the remaining council houses, recreational use of the Field by local people was by right and not as of right. I did not hear any argument on the effect of the 2003 transfer of the remaining housing stock to Yorkshire Coast Homes, but it is not necessary for present purposes to consider the post 2003 legal situation. 125 I therefore consider that, at least until 2003, recreational user of the Field by local people was not “as of right”
. The application fails on this ground”. A-G v Loughborough Local Board The Times 31st May 1881 Hall v Beckenham Corporation [1949] 1 KB 716 Sheffield corporation v Tranter [1957] 1 WLR 843

Blake v Hendon Corporation [1962] 1 QB 283

[10]The Inspector had referred to the case of R (Beresford) v Sunderland CityCouncil [2004] 1 AC 889 in paragraph 121 of his report, as follows:
“121 In my view, the critical issue in this case is whether recreational user of the Field by local people was “by right” or “as of right”
. Although the discussion of the point was obiter, there is strong guidance from the House of Lords in Beresford that user which is under a legal right is not user “as of right” Lord Bingham paras 3 & 9 Lord Hutton para 11 Lord Scott paras 29-30 Lord Rodger para 62 Lord Walker paras 72, 87 & 88 The comments of Lord Walker at para. 87 are particularly pertinent. He considered that it would be difficult to regard recreational users as trespassers acting as of right not only where there was a statutory trust under s. 10 of the Open Spaces Act 1906 but also where land had been appropriated for the purposes of public recreation. Under s. 122 of the Local Government Act 1972 (as amended) a local authority can appropriate land from one statutory purpose to another. I understand Lord Walker to be remarking that if a local authority holds land for a statutory purpose which involves public recreational use of the land (albeit without an express statutory trust in favour of the public) use of that land for public recreation would not be “as of right”.” Lord Bingham paras 3 & 9 Lord Hutton para 11 Lord Scott paras 29-30 Lord Rodger para 62 Lord Walker paras 72, 87 & 88

Provision of Open Space by local authorities

[11]Before considering Beresford, which Mr. Edwards placed at the heart of his submissions on behalf of the Appellant, it is helpful to mention the other statutory powers under which local authorities may provide open space/recreation grounds. Section 164 of the Public Health Act 1875 (“the 1875 Act”) gave urban authorities power to provide places of public recreation. As amended by the Local GovernmentAct 1972 (“the 1972 Act”) it provides:
“164. Any local authority may purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever. Any local authority may make byelaws for the regulation of any such public walk or pleasure ground, and may by such byelaws provide for the removal from such public walk or pleasure ground of any person infringing any such byelaw by any officer of the local authority or constable.”
[12]Section 9 of the Open Spaces Act 1906 (“the 1906 Act”) empowered local authorities to acquire by agreement “any open space or burial ground” whether within or outside their district. “Open space” is defined in section 20 of the 1906 Act:
“The expression “open space” means any land, whether inclosed or not, on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden or is used for purposes of recreation, or lies waste and unoccupied…”
Section 10 of the 1906 Act provides for the maintenance of any open space so acquired:
“A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest, or control was so acquired – (a) hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose: and (b) maintain and keep the open space or burial ground in a good and decent state. And may inclose it or keep it inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, provide with seats, and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any of them.”
[13]Section 19 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”) confers a power to provide a wide range of recreational facilities:
“(1) A local authority may provide, inside or outside its area, such recreational facilities as it thinks fit and, without prejudice to the generality of the powers conferred by the preceding provisions of this subsection, those powers include in particular powers to provide – (a) indoor facilities consisting of sports centres, swimming pools, skating rinks, tennis, squash and badminton courts, bowling centres, dance studios and riding schools; (b) outdoor facilities consisting of pitches for team games, athletics grounds, swimming pools, tennis courts, cycle tracks, golf courses, bowling greens, riding schools, camp sites and facilities for gliding; (c) facilities for boating and water ski-ing on inland and coastal waters and for fishing in such waters; (d) premises for the use of clubs or societies having athletic, social or recreational objects; (e) staff, including instructors, in connection with any such facilities or premises as are mentioned in the preceding paragraphs and in connection with any other recreational facilities provided by the authority; (f) such facilities in connection with any other recreational facilities as the authority considers it appropriate to provide including, without prejudice to the generality of the preceding provisions of this paragraph, facilities by way of parking spaces and places at which food, drink and tobacco may be bought from the authority or another person; and it is hereby declared that the powers conferred by this subsection to provide facilities include powers to provide buildings, equipment, supplies and assistance of any kind. (2) A local authority may make any facilities provided by it in pursuance of the preceding subsection available for use by such persons as the authority thinks fit either without charge or on payment of such charges as the authority thinks fit. ”
[14]When the 1875 Act was enacted a local authority had no power to appropriate land which it had acquired for one statutory purpose to another purpose. The power to appropriate to another purpose with the approval of the Minister was introduced by the Local Government Act 1933, and the general power is now contained in section 122(1) of the 1972 Act:
“122. (1) Subject to the following provisions of this section, a principal council may appropriate for any purposes for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation; but the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned.”
[15]The general power to appropriate is qualified in the case of land held as open space by subsections (2A) and (2B) inserted by the Local Government Planning and Land Act 1980:
“(2A) A principal council may not appropriate under subsection (1) above any land consisting or forming part of an open space unless before appropriating the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed appropriation which may be made to them. (2B) Where land appropriated by virtue of subsection (2A) above is held – (a) for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds); or (b) in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds), the land shall by virtue of the appropriation be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with the said section 164 or, as the case may be, the said section 10. ”
[16]In Beresford the land in question had been acquired by the Washington Development Corporation (“the Corporation”) under the New Towns Act1965 (“the New Towns Act”) as part of its development of Washington New Town. Under the New Towns Act, New Town Development Corporations were given very wide powers. For the purpose of securing the laying out and development of the New Town the Corporation had power under section 3(2) of the New Towns Act:
“(a) to acquire, hold, manage and dispose of land and other property: (b) to carry out building and other operations; (c) to provide water, electricity, gas, sewerage and other services: (d) to carry on any business or undertaking in or for the purposes of the new town, and generally to do anything necessary or expedient for the purposes of the new town or for purposes incidental thereto.” (b) to carry out building and other operations; (c) to provide water, electricity, gas, sewerage and other services: (d) to carry on any business or undertaking in or for the purposes of the new town, and generally to do anything necessary or expedient for the purposes of the new town or for purposes incidental thereto.”
[17]Normal planning controls were dispensed with, and the Minister would give planning permission by a Special Development Order for the Corporation’s proposals submitted and approved under section 6(1) of the Act:
“6.–(1) The development corporation established for the purposes of a new town shall from time to time submit to the Minister, in accordance with any directions given by him in that behalf, their proposals for the development of land within the area of the new town, and the Minister, after consultation with the local planning authority within those area the land is situated, and with any other local authority who appear to him to be concerned, may approve any such proposals either with or without modification.”
[18]In the Corporation’s New Town Plan 1973, which would have been approved under section 6(1), the land was identified as “parkland/open space/playing field.” It was laid out and grassed over by the Corporation in 1974. From 1974 the Corporation and its successors mowed the grass each summer. In 1977 benches were installed around three sides of the land, and a non-turf cricket wicket was laid down in 1979. On the evidence, the land was used by the public for various recreational activities for at least 20 years from 1977: see the opinion of Lord Scott at paragraphs 17 and 18.[19]The application to register the land as a TVG under the Commons Act 1965 (“the 1965 Act”) was refused by the registration authority on the basis that the land had been used by the public by virtue of an implied licence from the Corporation and its successors, the Commission for the New Towns and the Sunderland City Council, and not as of right. In the High Court and the Court of Appeal the applicant’s challenge to this decision was rejected. The House of Lords allowed the applicant’s appeal. Lord Bingham considered the meaning of the words “as of right” in paragraphs 3 and 4 of his opinion: “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 pSunningwell Parish Council [2000] 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 (2 & 3 Will 4, c 71), 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.”[20]Having said that a licence could, in principle, be implied where the facts warranted such an implication (paragraph 5), Lord Bingham said that a licence could not be implied from the mere inaction of a landowner with knowledge of the use to which his land was being put (paragraph 6); and he rejected the local authority’s submission that a licence could be implied because it had encouraged the public to use its land, by mowing the grass and by providing benches for spectators. In paragraph 7 of his opinion Lord Bingham said that this argument was open to a fundamental objection:
“7. As already pointed out, the [Commons Act 1965] 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.”
[21]At the initial hearing of the appeal before the House of Lords the parties did not deal with the implications of the public ownership of the land, and the appeal was restored for further written and oral argument: see paragraph 23 of Lord Scott’s opinion. Lord Bingham dealt with this issue in paragraph 9 of his opinion:
“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.”
Lord Bingham agreed with Lord Scott, Lord Rodger and Lord Walker (paragraph 10). Lord Hutton agreed with Lord Walker, Lord Rodger and Lord Bingham (paragraph 11).[22]In paragraph 30 of his opinion Lord Scott said:
“30. It is, I think, accepted that if the respondent council acquired the sports arena “under the 1906 Act”, the local inhabitants’ use of the land for recreation would have been a use under the trust imposed by section 10 of the Act. The use would have been subject to regulation by the council and would not have been a use “as of right” for the purposes of class c of section 22 (1) of the Commons Registration Act 1965. But Mr. Petchey accepted that Mr. Laurence was correct in contending that the sports arenahad not been acquired “under the [1906] Act” and that section 10 did not, therefore, apply….”
[23]Lord Rodger, who agreed with Lord Bingham and Lord Walker, dealt with the parties’ further submissions in paragraph 62 of his judgment:
“62. After the first hearing of the appeal, however, your Lordships invited further written and oral submissions from counsel on whether any of the statutes that may apply to local authority land had conferred on the local residents and others a right to use the sports arena – with the result that their use would be “of right”, as opposed to being “as of right” in terms of section 22 (1) of the 1965 Act. Having considered those submissions, for the reasons given by my noble and learned friend, Lord Walker of Gestingthorpe, I am satisfied that, on the agreed facts, neither the designation of the land as “open space” in the New Town Plan nor any of the statutes conferred any such right in this case.”
[24]Lord Walker dealt with the parties’ further submissions in paragraphs 86-88 of his opinion: “86. I would however add that I feel some sympathy for the view taken by the courts below. The city council as a local authority is in relation to this land in a different position from a private landowner, however benevolent, who happens to own the site of a traditional village green. The land is held by the city council, and was held by its predecessors, for public law purposes. A local resident who takes a walk in a park owned by a local authority might indignantly reject any suggestion that he was a trespasser unless he obtained the local authority’s consent to enter. He might say that it was the community’s park and that the local authority as its legal owner was (in a loose sense) in the position of a trustee with a duty to let him in. (Indeed that is how Finnemore J put the position in Hall v Beckenham Corpn [1949] 1 KB 716, 728 which was concerned with a claim in nuisance against a local authority, the owner of a public park, in which members of the public flew noisy model aircraft). So the notion of an implied statutory licence has its attractions.[87]After that approach had been suggested there was a further hearing of this appeal in order to consider the effect of various statutory provisions which were not referred to at the first hearing, including in particular section 10 of the Open Spaces Act 1906, sections 122 and 123 of the local Government Act 1972 and section 19 of the Local Government (Miscellaneous Provisions) Act 1976.[88]Those situations would raise difficult issues but in my opinion they do not have to be decided by your Lordships on this appeal, and would be better left for another occasion. The undisputed evidence does not establish, or give grounds for inferring, any statutory trust of the land or any appropriation of the land as recreational open space. Counsel for Sunderland rightly did not argue for some general implied exclusion of local authorities from the scope of section 22 of the Commons Registration Act 1965.”[25]When summarising the salient points of the evidence Lord Walker said that the land had been acquired by the Corporation as part of “an extensive acquisition under the very wide powers of the New Towns Act 1965.” The land was not acquired by the Corporation for any specific purpose and it was not under an obligation to appropriate it for any specific purpose, such as housing, public buildings or open space (paragraph 89(a)). In paragraph 90 of his opinion Lord Walker said that there was no evidence of any formal appropriation of the land as open space by the City Council or its predecessors, nor was there any material from which such an appropriation could be inferred.

Discussion

[26]I have dealt with Beresford at some length because it is the only case in which consideration has been given to the issue which arises in this case, albeit on the basis of further submissions, and in the context of the “very wide powers” conferred by the New Towns Act. Mr. Edwards accepts that Beresford is authority for the following propositions:(a) That there is a distinction between a use of land “by right” and a use of land “as of right”.(b) That if a statute properly construed confers a right on the public to use land for recreational purposes their use of that land will be by right and not as of right.(c) That section 10 of the 1906 Act is an example (Mr. Edwards submits the only example) of land which is provided by a local authority as open space which the public use for recreational purposes by right.[27]It was common ground in Beresford that open space held by a local authority under section 10 of the 1906 Act was used by right and not as of right: see paragraph 30 of Lord Scott’s opinion, and paragraph 87 of Lord Walker’s opinion (above, paragraphs 22 and 24). Mr. Edwards distinguishes the rights of the public under section 10 of the 1906 Act from their rights under the other enactments, including section 80 of the 1936 Act, under which local authorities provide open space or recreation grounds, because Parliament has expressly provided that a local authority holding land under section 10 holds the land “in trust to allow…..the enjoyment thereof by the public as an open space …. and for no other purpose.” He submits that where Parliament wishes to confer a right to use land for recreational purposes it does so in express terms.[28]In support of this submission Mr. Edwards referred to section 193 of the Law of Property Act 1925 (“the 1925 Act”) and section 2 of the Countryside andRights of Way Act 2000 (“the 2000 Act”). In my view, these two enactments are of no real assistance in the present context: the use for recreation by the public of land which is made available for that purpose by a local authority in the exercise of its statutory powers. Section 193 of the 1925 Act gave to members of the public “rights of access for air and exercise” over commons within the Metropolitan Police District. Section 2 of the 2000 Act conferred the “right to roam” over “access land” as defined in the Act. In both cases the public were being given rights over land which was not provided as an open space for public recreation by a local authority.[29]Section 164 of the 1875 Act differs from section 10 of the 1906 Act in that it does not expressly impose a trust on the local authority to allow the public to use the land as public walks and pleasure grounds, but in the absence of a statutory power of appropriation when section 164 was enacted, the authority having purchased the land “for the purpose of being used as public walks and pleasure grounds” could not lawfully use it for any other purpose. Section 164 of the 1875 Act was principally concerned with the provision of new open space for public recreation. Section 9 of the 1906 Act enabled local authorities to acquire existing open spaces, which might already be laid out as gardens or used for the purposes of recreation: see the definition of “open space” in section 20 of the 1906 Act (paragraph 12 above). The requirement in section 10 to hold such land on trust for use by the public as an open space and for no other purpose ensured that existing open space would not be acquired for some other purpose by the local authority and then lost as open space.[30]In Hall v Beckenham Corporation [1949] 1 KB 716, referred to by Lord Walker in paragraph 86 of his opinion (paragraph 24 above), Finnemore J held that:
“So far as a local authority are concerned, if land is bought under s. 164 of the Act of 1875 for that purpose [the purpose of public walks or pleasure grounds] it is dedicated to the use of the public for the purpose of a park.”
(p. 726). He therefore concluded that the local authority were not liable as the occupiers of the park for an alleged nuisance that was being committed in the park. Finnemore J also rejected the plaintiff’s submission that even if it was not the occupier, the authority was liable because it had the management and control of the park:
“So long as a member of the public behaves himself in the ordinary way, committing no criminal offence and observing the by-laws, the corporation cannot stop his doing what he likes in this recreation ground…… I think that the corporation are the trustees and guardians of the park, and that they are bound to admit to it any citizen who wishes to enter it within the times when it is open. I do not think that they can interfere with any person in the park unless he breaks the general law or one of their by-laws. They cannot put themselves in the position of judges of whether a person may be causing a nuisance to someone outside the park. Their proper attitude to such a complaint is to say that the complainer must take action against the person who is said to be committing the nuisance.”
(p. 728).[31]Mr. Edwards submitted that the issue in Hall v Beckenham was very different: liability in nuisance. While that is true, the proposition that an open space provided under section 164 of the 1875 Act is “dedicated to the use of the public” who have a right to use it for recreational purposes has been widely accepted. Paragraph 556 of Volume 78 of Halsbury’s Laws (Fifth Edn), which deals with the powers of local authorities in respect of public pleasure grounds, says (in part):
“The authority may not use a public pleasure ground provided by it, or permit it to be used, for any purpose inconsistent with public recreation, subject to certain exceptions. The authority is not the occupier of the land, but merely its custodian or trustee on behalf of the public….”
Hall v Beckenham is cited as authority for the latter proposition. When Parliament inserted subsection (2B) into section 122 of the 1972 Act it did so in the belief that land would be held by a local authority on trust for enjoyment by the public whether it was held under section 164 of the 1875 Act or section 10 of the 1906 act: see paragraph 15 (above).[32]Mr. Edwards submitted that, unlike section 10 of the 1906 Act which expressly conferred on the public a right to use land provided under that section as an open space, so that their use of such land for that purpose would be by right, section 164 of the 1875 Act conferred no such right. He accepted that members of the public using land laid out as “public walks and pleasure grounds” under section 164 would not be doing so as trespassers. He submitted that the public would have “an expectation that they were entitled” to use the land for recreational purposes, and the local authority would expect members of the public to use the land for such purposes. However, these reciprocal “expectations” would not be sufficient to defeat a claim that the use of the land by the public for lawful sports and pastimes was as of right and not by right.[33]There is no discussion of the 1875 Act in Beresford, but Lord Walker did not distinguish between the position under the 1906 Act (which was common ground in Beresford and is not challenged in this appeal) and the position where land had been appropriated for the purpose of public recreation:
“Where land is vested in a local authority on a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers). The position would be the same if there were no statutory trust in the strict sense, but land had been appropriated for the purpose of public recreation.”
The final sentence of paragraph 87 of Lord Walker’s judgment is obiter, but Lord Walker clearly regarded “appropriation” for the purpose of public recreation as being of critical importance. He emphasised that the undisputed evidence in Beresford did not establish, or give grounds for inferring “any statutory trust of the land or any appropriation of the land as open space” (emphasis added): see paragraphs 88, 89(a) and 90 of his opinion (paragraphs 24 and 25 above).[34]While they are not binding (see paragraph 88 of his opinion) Lord Walker’s observations are highly persuasive, and I can see no sensible reason for drawing a distinction between land held under section 10 and land which has been appropriated for recreational purposes under some other enactment. Mr. Edwards made it clear that it was no part of his submissions that Lord Walker was wrong in not distinguishing between land which is held on a statutory trust under section 10 and land which has been appropriated for the purpose of public recreation. Land which is held under section 164 of the 1875 Act for the purpose of being used as public walks or pleasure grounds is, in my view, the paradigm of land which has been appropriated for public recreation. There is no suggestion that Lord Walker was using the word “appropriated” in the narrow sense of appropriated for the purpose of public recreation under section 122 of the 1972 Act from some other statutory purpose. There is no practical distinction between land which is initially acquired for open space purposes and land which has been appropriated for open space purposes from some other use. Accordingly, I can see no basis for distinguishing between open space that is provided under section 10 of the 1906 Act and open space that is provided under section 165 of the 1875 Act. In both cases the public’s use of that land for lawful sports and pastimes will be by right, and not as of right.[35]Is the position any different when the recreation ground is provided under section 80 of the 1936 Act? Such land is not formally appropriated under section 122 of the 1972 Act from housing to open space purposes. It is acquired, and continues to be held by the local authority, for housing purposes, as are the shops or other buildings, eg community centres, which serve a beneficial purpose in connection with the requirements of those living in the housing: see section 80(1) (paragraph 6 above). Thus, unlike open space provided under section 10 of the 1906 Act or section 164 of the 1875 Act, there is no need to appropriate a recreation ground provided under section 80 to housing purposes if, as in the present case, the local authority wishes to build houses on the recreation ground.[36]In these circumstances, there is much force in Mr. Edwards’ submission that the statutory framework under which the Field is provided is analogous to the “very wide powers” under the New Towns Act 1965 under which the land was made available as a sports arena in Beresford. Unfortunately, there is no analysis in Beresford of the powers conferred by the New Towns Act. 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. Lord Bingham found it unnecessary to review the statutory provisions because, on the facts, he considered that none of them could be relied on to confer a legal right to use the land for indulgence in lawful sports and pastimes (paragraph 9). Lord Rodger said that, for the reasons given by Lord Walker, neither the designation of the land as “open space” in the New Town Plan nor any of the statutes conferred any right to use the sports arena (paragraph 62). Lord Walker emphasised the “very wide powers” in the New Towns Act, the fact that the land was not acquired for any particular purpose, and the fact that the Corporation was not under an obligation to appropriate the land for any specific purpose, such as housing, public buildings or open space (paragraph 89(a), see paragraph 25 above).[37]Like Lord Scott, I am uneasy about the conclusion that the House of Lords reached in Beresford, but we are bound by it. However, my understanding of the decision is that it turned very much upon the particular facts in that case, and the House of Lords deliberately left open the wider question: when will user by the inhabitants of a locality be pursuant to a statutory right to do so and not as of right? We are concerned with the provision of a recreation ground by a local authority under a different statutory framework. On the Inspector’s findings of fact the Field was acquired under a statutory power for a specific purpose: housing. While the UDC was not under any obligation to lay out the land as a recreation ground, the enabling enactment expressly gave it power, with the consent of the Minister, to provide a recreation ground in connection with the housing. The Minister’s consent having been obtained and the Field having been laid out and thereafter maintained as a recreation ground initially under that express statutory power, and thereafter under its successor, section 12 of the 1985 Act, it seems to me that it would be wholly unreal to conclude that the Field had not been “appropriated for the purpose of public recreation” in the sense in which Lord Walker referred to “appropriation” in paragraph 87 of his opinion in Beresford.[38]Mr. Edwards submitted that following the decision of the Supreme Court in R (Lewis) v Redcar and Cleveland Borough Council (No. 2) [2010] 2 AC 70 [2010] UKSC 11 the question whether user was as of right was to be determined solely by reference to the tripartite test: that the user must be nec vi, nec clam and nec precario: see eg the judgment of Lord Walker JSC at paragraph 20. He submitted that there was no room for the addition of a further requirement: that the user must not be “by right”. I do not accept that submission. There is no suggestion in Lewis that Beresford was wrongly decided. The distinction between user pursuant to a statutory right and user as of right was expressly recognised in Beresford (see paragraph 19 above). Moreover, Mr. Edwards’ submission that the tripartite test suffices for all purposes is undermined by his acceptance of the proposition that use of open space provided under section 10 of the 1906 Act would be by right and not as of right.[39]Lewis was not dealing with the issue with which we are concerned, but as Miss. Stockley submitted on behalf of the Respondent, it does reaffirm the proposition that the concept of user “as of right” in the 2006 Act is based upon the law of prescription: see paragraph 17 per Lord Walker JSC, and paragraph 65 per Lord Hope JSC. The local inhabitants gain the legal right to indulge in lawful sports and pastimes upon land over which they have indulged in lawful sports and pastimes merely “as if of right”: see per Lord Brown JSC. The local inhabitants cannot be considered to have indulged in lawful sports and pastimes by dint of a right until the right has come to fruition, after the period of 20 years user “as if of right” has elapsed: see paragraph 110 per Lord Kerr JSC.[40]Miss. Stockley submitted that there was an inconsistency between Mr. Edwards’ acceptance of the fact that the users of the Field were not doing so as trespassers, and his submission that they were using the Field “as if of right” and not by right. If those using the Field were not doing so as trespassers, they were doing so because they were entitled to use the Field for recreational purposes. They were so entitled because, for so long as the land was held by the local authority under an enactment which conferred an express power to provide and maintain it as a recreation ground, the public had a right to use the land for that purpose. She contrasted the specific power in the 1936 Act with the very general power in the New Towns Act.[41]It is tempting to say that a person who is not using land for recreational purposes as a trespasser must be using that land by right and not as if of right, but as Mr. Edwards points out, in Beresford the Corporation had positively encouraged the public to use the sports arena. In Lord Scott’s opinion the users were “certainly not trespassers” (paragraph 48), but the fact that they were not trespassers did not mean that their use was inconsistent with it being a use of the land “as of right” (ibid). However, it is clear that Lord Scott was uneasy with the conclusion, which he said was an evidentiary one, that use of the land pursuant to an implied permission was not inconsistent with use as of right, and he allowed the appeal on the basis on which the case had been argued (paragraph 52). Whether trespass is a necessary characteristic of a use “as if of right” is unclear, given the facts in Beresford (see paragraph 18 above). Lord Walker distinguished between those who used open space provided under the 1906 Act or which had been appropriated for the purpose of public recreation, who in his view would be “very difficult” to regard as trespassers, and the use of the land by the public on the facts of that case (paragraphs 87 and 88).[42]It is “very difficult”, if not impossible, to regard the local inhabitants who indulge in lawful sports and pastimes on land which is provided by a local authority as open space under the 1906 Act, as public walks and pleasure grounds under section 164 of the 1875 Act, or as a recreation ground under section 80 of the 1936 Act, as trespassers. The underlying difficulty may well be the need to apply private law concepts in a public law context. The former focuses upon rights, the latter upon duties. Most statutes dealing with local authorities do not expressly confer rights on members of the public, they tend to impose duties upon the authority and thereby confer rights that are enforceable as a matter of public law. The local inhabitants can fairly be said to have a statutory right to use land which has been “appropriated” for lawful sports and pastimes because the local authority, having exercised its statutory powers to make the land available to the public for that purpose, is under a public law duty to use the land for that purpose until such time as it is formally appropriated to some other statutory purpose under section 122, or in the case of a recreation ground provided and maintained under Housing Act powers (now section 12 of the 1985 Act), a formal decision is taken that it shall be used for some other housing purpose.[43]While there is no general exclusion of local authorities from the scope of the 2006 Act (see the final sentence of the opinion of Lord Walker in Beresford, paragraph 24 above), local authorities holding land for a particular statutory purpose are not in the same position as private landowners who may, subject to planning controls, change the use of their land at will. A local authority holding land for a particular statutory purpose may not use it for any other purpose unless it has been formally appropriated to that purpose, and if it simply ceases to use land for the statutory purpose for which it is held it must be able to justify its decision to do so on public law grounds. Unlike a private landowner it may not lawfully close a recreation ground or prevent members of the public from using it for recreation, on a whim. Conclusion[44]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.[45]I would dismiss the appeal. Lord Justice McFarlane: I agree. Lord Justice Richards: I also agree.

Cited in 7 later judgments