Barkas, R (on the application of) v North Yorkshire County Council & Scarborough Council [2011] EWHC 3653 (Admin)

Case No CO/122/2011[2011] EWHC 3653 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Leeds Combined Court Centre
Oxford Row
Venue Leeds LS1 3BGDate Tuesday, 20th December 2011
B e f o r e:
MR JUSTICE LANGSTAFF
Between
R (BARKAS)Claimantv
Between
NORTH YORKSHIRE COUNTY COUNCIL & SCARBOROUGH COUNCILDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Ormondroyd (instructed by Richard Buxton Sols) appeared for ClaimantMiss Stockley (instructed by North Yorkshire County Council In House) appeared for DefendantJ U D G M E N T
[1]MR JUSTICE LANGSTAFF: The Haredale playing field at Haredale Road, Whitby, became used as a playing field as long ago as 1948. On 12th October 2007 an application was made by some of those living close to the playing field to register the land as town or village green.[2]As one leaves Whitby toward Scarborough, the Haredale Road will take one past the playing field. It is as an inspector, Vivian Chapman QC, who was later to describe a field which was bell shaped in plain view. There were housing estates to the east and to the west. At the foot of the bell, the southern side of the field, there was further housing.[3]A non statutory Inquiry was heard in April 2010 with Mr Vivian Chapman QC as the inspector. In his report on 28th July 2010, he came to the conclusion that the use of the land on the evidence that he had received, which broadly he accepted, in so far as it came from the local residents, had been exercised without forcible entry by them onto the land, had not been exercised secretly and was not precarious in the sense of being expressly permissive. However, he declined to advise registration of the land because of the Commons Act 2006, section 15 provides an obligation to register where a significant number of the inhabitants of any locality 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 continued to do so at the time of the application (section 15(2)(a) and (b)). He concluded that the use made by the residents was not as of right, which implies that there is no actual statutory right, but it was by right.[4]The claimant takes issue with that conclusion. She argues that the use was upon a proper understanding of the applicable legislation as of right and not by right, at least by some of those who used the playing field and therefore the inspector's advice was flawed.[5]The defendant council received the inspector's report and a further report dealing with matters which had been raised by the applicants in October 2010 and preceded to a decision of which formal notification was given on 29th October 2010. Both parties before me, the interested party taking no active part in the proceedings on the basis that it stands by the approach of the defendant and does not wish to make separate submissions, ask me to accept that the local authority adopted the views of the inspector. Accordingly, if he was in error, the local authority was in error and its decision to refuse to register was legally flawed. The Issue[6]The issue for me arising out of that brief synopsis is whether the Inspector was wrong in law to conclude that the public had a legal right to use the land for recreational purposes when it was laid out and maintained as a recreation ground, open to the public, pursuant to the Housing Acts.[7]This question was addressed by the Inspector at paragraph 121 of his report of July 2010. He said:
"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.'"
He then went on to say:
"Although the discussion of the point was obiter, there is strong guidance from the House of Lords in Beresford [that being a reference to R (On the application of Beresford) v Sunderland County Council, [2003] UKHL 60 also reported [2004] 1 AC 889 that user which is under a legal right is not user 'as of right'"
. With that proposition, Mr Ormondroyd, who appears for the claimant agrees. The Inspector went on to say at paragraph 122:
"It appears to me to be a reasonable inference that the Field was set out and maintained as a recreation ground pursuant to s 80 of the 1936 Act. 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: HE Green & Sons v The Minister of Health (No 2) [1948] 1 KB 34. This principle would, in my view, justify the council in allowing use of the Field by the Sunday League, even if its players were not all council tenants. Accordingly, it was within the power of Whitby UDC under s 80 to set out and maintain a public recreation ground provided that it benefited its tenants.... In any event, a local authority had power to lay out public open spaces on council estates under s 79(1) (a) without ministerial consent. If there had been no ministerial consent to setting out the Field as a recreation ground, it seems to me that the Field would fall to be regarded as a public open space. The 1936 Act contains no definition of 'recreation ground' or 'open space' for the purposes of these sections."
The reference to section 80 of the 1936 Act was a reference to section 80 of the Housing Act 1936, under which the land was acquired by the local authority in 1948, as I have described.[8]Section 80 comes in a part of the Act, Part 5 entitled "Provision of housing accommodation for the working classes". It is common ground that between the parties before me, that those words set out the purposes of the Part. Section 80 reads as follows:
"(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."
[9]Section 79(1) (a) to which the Inspector made reference is in the same part and reads:
"Where a local authority have acquired or appropriated any land for the purposes of this Part of this Act then without prejudice to any of their other powers under this Act the authority may (a) lay out and construct public spits or roads and open spaces on the land."
I shall return to the decision in Green shortly.[10]The Inspector postulated at paragraph 124 that the question that arose was whether local people had a legal right to use a recreation ground which was set out under section 80 of the 1936 Act and during the relevant 20-year period maintained under section 12 of the 1985 Act as a recreation ground open to the public. The reference to section 12 of the 1985 Act is a reference to the Housing Act of 1985, which is the statutory successor of section 80. It makes no reference to the working classes, but in section 12 reads:
"Provision of shops, recreation grounds. (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."
The power is thus though not identically expressed in materially the same terms as was section 80 of 1936 Act.[11]The Inspector reasoned, further in paragraph 124, that the Open Spaces Act 1906, created by section 10 and expressed statutory trust for public recreation. However, he observed:
"... 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 the Public Health Act 1875 s 164 (which contains no express trust for public recreation) in a series of cases..."
He set them out, and added:
"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 SBC [that was being a reference to the interested party] 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."
[12]The obiter comments of Lord Walker in paragraph 87 of Beresford, which support the Inspector's views, he thought as to the absurdity of concluding that some using the ground for recreation in the particular circumstances of this case should be treated as trespassers was a reference to the following passage in Lord Walker's speech in Beresford:
"... 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. 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."
That was plainly obiter, but the Inspector regarded it as supportive of his view, as to the absurdity of holding that those who were local residents could be regarded as trespassers on the land and similarly, if they were not trespassers but entitled to use the property, that it would be absurd to treat the public generally as also being trespassers. Submissions[13]Mr Ormondroyd, for the claimant, argues, in an argument of subtlety and care, that the Inspector in those passages which I have cited made a mistake of law. He wrongly introduced the word "public" into paragraph 122. The power under section 80 of the 1936 Act was a power to provide a recreation ground; the word "public" does not appear. Yet the Inspector said, in a relevant passage:
"Accordingly, it was within the power of Whitby UDC under s 80 to set out and maintain a public recreation ground..."
If the local authority had power to set out and maintain a public recreation ground, he accepts that the public would use that ground by right and not as of right. But his argument is that the only power which section 80 conferred was a power to provide a recreation ground for those whose houses were being provided under Part 5.[14]The power expressly was to be exercised to serve a beneficial purpose in connection with the requirements of the persons for whom the relevant Housing accommodation is provided. Those persons, he submits, were the council tenants of the Western Estate, who belonged to the working classes. It was for them and them only that the recreation ground could be provided under section 80. Although he was prepared to accept that the local authority had power to allow others onto the land, should it wish to do so, they would not come onto that land by right those who lived in the housing estate in respect of which the recreation ground was provided where those who had the right under statute to use the recreation ground.[15]As a matter of fact it is accepted that the recreation ground was acquired by the local authority and laid out as a recreation ground, in connection with the Western Estate not the Eastern or the Southern Estates. Accordingly, any person from either of those two latter estates who used the land, and the evidence before the Inspector was that many such persons did, would not use the land by right on the findings of the fact of the Inspector they would use it as of right. There would thus be persons who would be entitled to make an application under the Commons Act 2006, upon a proper application of that Act therefore, since the requirements of the Act were met, the land should have been registered as a town or village green.[16]He submits that the Inspector was not entitled to draw the conclusion he did from the Green case. I now return to examine that case in the light of the submissions made by Mr Ormondroyd. In that case, what was centrally in issue was, first, whether the local authority, by section 73 of the Housing Act 1976 had the power to acquire any land, as the site for the erection for houses for the working classes, if the local authority intended that some of those houses should be occupied by persons who are not members of the working classes. A second issue arose under section 80. That was whether, if the local authority intended that buildings intended for use as shops, recreation grounds and other buildings would be available to the general public and not just the council house occupants, who were of the working class, the local authority had power to do what it wished to do.[17]Denning J (as he then was) dealt with the first question by stating that he was satisfied that the local authority did not mean to restrict itself in its letting of the houses, it was to build on the land it was attempting to acquire, to those who were of any particular class. He did not however, regard that as invalidating the exercise of the powers. He then said this, page 41:
"The next question is whether the order [that was the compulsory purchase order] is invalid because, in addition to houses being put up on this land, the co-operation proposed to put up nurseries, a health centre, a youth centre, shops, a public house, and so forth. It is said, and truly said, that in providing or contemplating the provision of those amenities, the co-operation intend that they should be available, not only to the persons living in the houses that are going to be put up in this estate, but also for persons from the neighbouring areas. It is said that makes the proposal invalid. This contention depends on the true interpretation of s 80. That section, contemplates that, providing the Minister consents, the land may be used, not only for houses, but also for shops, recreation grounds, and other buildings, which 'will serve a beneficial purpose in connecxion with the requirements of the persons for whom the housing accommodation is provided.' It is said if this proposed health centre, shops, etc, are in connexion with the requirements of other persons, in addition to those of this estate, that makes it outside the powers of s 80. I do not think that is a correct interpretation. The fact that it will also serve a beneficial purpose for other persons does not make it any the less a beneficial purpose for the persons in this housing estate. I see no reason for introducing the limitation which is suggested, and I do not think the proposed development is invalid."
[18]Mr Ormondroyd argues that that case considered whether the exercise of the power of compulsory purchase was invalid because of the intention of the local authority that the facilities to be built upon the land so purchased would be used not just by residents of the council accommodation but also by others. It was not also authority for the proposition that members of the public, outside the council tenants had a statutory right to use the facilities to be provided under that section. The question of user rights was not relevant and it was not discussed even in passing. He accepted however that on the basis of Green, the council could allow use of the land by persons other than its tenants.[19]He argued that the analogy with the cases under section 164 of the Public Health Act 1875 was not a proper analogy which could be of any assistance to the Inspector. That is because the 1875 Act, within its terms, provides that a local authority may purchase "... lands for the purpose of being used as public walks or pleasure grounds ..." That is a power expressly to provide a pleasure ground for public use. Where there is a power, which may be exercised to provide land for public purposes, the public have, or may have a right to use the land for those purposes. But section 80 contains no word "public" qualifying "recreation grounds". He was therefore happy to accept that the case law under section 164 says what the Inspector concluded it did but argued that this was beside the point. In my view, his contention here has some force. In order to decide whether the land at Haredale playing field is land which the public more generally than those who occupy council housing in the nearby estate to the west were entitled to. It cannot assist to begin, by regarding the recreation ground as a public ground because that begs the question. He notes that section 79, by contrast uses the word "public". He submits that there is no proper assistance to be gained, as the Inspector purported to gain it, from the observations that Lord Walker made in Beresford. The reasoning in Lord Walker's speech is contained in the paragraphs up to including paragraph 85, beyond that including paragraph 87. His remarks are obiter. The reference by Lord Walker to the Open Spaces Act 1906 was beside the point here, where neither party was asking the court to conclude that the Open Spaces Act 1906 applied, the statutory power which was being exercised, so the Inspector found was that under section 80 of the Housing Act. Secondly, his observation, at the conclusion of paragraph 87. "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." That could be a reference to the 1875 Act but it was unclear. There had been here, no formal appropriation which was recorded in any document. There was a contrast between this approach by Lord Walker and that adopted by Lord Scott (see paragraphs 29 and 30 of his speech). The latter did not talk about appropriation. Discussion[20]In my view the first question is whether on the facts as set out by the Inspector and which are not subject to challenge, the provision of a playing field at Haredale came within section 80 of the Housing Act. Plainly, in my view, it did. The local authority was empowered to provide and maintain "any recreation grounds" in connection with the Housing Act accommodation, in this case the western estate; which would serve a beneficial purpose in connection with the requirements of the persons in that estate.[21]This requires a court to ask whether the land was acquired in connection with that accommodation, plainly on the findings of fact by the Inspector it was. But was it a recreation ground? Plainly it was. Did it serve a beneficial purpose in connection with the requirement of the persons who were council tenants of the working class in the western estate? Plainly it did. Accordingly, those persons, in my view, were entitled to use the recreation ground under the Housing Act 1936. Thus far Mr Ormondroyd would agree.[22]The question then arises whether those who were not counsel tenants in that class, in that estate, but lived elsewhere would also be entitled to use the land.[23]This is a general question, applicable to all cases in which section 80 of the Housing Act 1936 and its statutory successors have been used.[24]Here, it is plain from the decision in Green that the local authority had power to permit other people to use the recreation ground at the very least. When I invited Mr Ormondroyd to say what the power was, he could point only to section 80. The context is, as the Inspector observed, that a local authority is a statutory body. It can only act if it has statutory power to do so. It could therefore only permit the use of the recreation ground if it had power to do so. The argument that the recreation ground is provided so as to confer an entitlement only upon those in the Western estate is therefore an argument that there is no power to provide the same facility for others, even although the recreation grounds provision is within the four corners of the wording of the Act. This, it seems to me, is directly analogous to the situation which presented itself before Denning J in the case of Green. He concluded, in reasoning, which I gratefully adopt, that the fact that a local authority intended, in his case, that the land be used by those other than the persons for whose principal benefit the statutory power existed did not invalidate the exercise of that power.[25]Accordingly, as it seems to me, the local authority had power to set out a recreation ground which might be intended for use by the public if that is what the local authority so chose. Here, it seems to me that there is a finding of fact by the Inspector that the ground was set out as a public recreation ground. The local authority set it out. When it did so, according to the Inspector's report, it provided entrances and exits to and from the recreation ground, to the northeast, the northwest, the southeast and the southwest. Those exits and entrances did not lead to and from the Western estate alone.[26]He described the playing field as having all the appearance of a typical municipal recreation ground with easy access from the surrounding estate (paragraph 6). He described the entrances to the field as being four public entrances. He had an accompanied site view. He was therefore plainly of the view, from that material, and from his visit, that this field had all the characteristics of a field open to the public and could only have concluded that it was set out in that way.[27]His observations about section 79 of the Housing Act 1936 were to the effect that the local authority could provide a public recreation ground in pursuance of its powers in respect of that Part of the Act and therefore for the purposes of that Part which I have already described. He bolstered that view, rightly in my judgment, by considering the observations of their Lordships in Beresford (see paragraph 121) for all the passages which he considered. But essentially he took the comments of Lord Walker as demonstrating support for the view that it would be absurd to draw a distinction between classes of use by different classes of people, in circumstances in which the recreation ground was set out with every appearance of it being for public use, under a power which permitted it and in pursuance of a section which, as Mr Ormondroyd accepts, does not draw any distinction between the council house tenants and others when it came to the use of facilities provided under the power contained in that section.[28]Accordingly I accept that the construction which I prefer of the applicable legislation is exactly that which commended itself to the Inspector and this avoids the absurd consequence of distinctions having to be made between those who are working class and those who are not, at least while that unfortunate description could be said to apply for those who were tenants of the council in council houses and others for at least as long as they did. The analysis conducted by Mr Ormondroyd, in my view, misses the point.[29]The point is whether or not a recreation ground could be provided. If it was and if it was laid out for general public use, there would be nothing that would prevent it. That does not mean in my view that some of those using it were trespassers, whether to be regarded as tolerated trespassers or not, nor does it mean that they were permitted to be there and, I should add, if they had been permitted or were held to be permitted to be there, then they would be in no position to make an application under the 2006 Act because their position would be precarious within the traditional meaning of that word.[30]The conclusion I reach is furthermore consistent with the position of a local authority as a public body. Its powers and its duties are related to the fact that it is representative of those who come within its area of authority. That area is far larger and wider than a housing estate on part of the local authority's area.[31]The emphasis in the sections of the Housing Act is on public provision, it is not, as I read it, essentially upon making provision for classes of the public distinct from one another, even though a recreation ground may only be set up under section 80 if it will be of benefit to people in housing accommodation to which that is related. The point I make about the general functions of a local authority is amply supported by considering other statutes, which demonstrate that the public policy is in emphasising the public provision which local authorities may make (see for instance the Open Spaces Act and the 1875 Act) to the extent that they may be regarded as of any assistance at all.[32]Accordingly, the conclusion which the Inspector came to at paragraph 124 and 125 was, as it seems to me, one reached not in error of law but with a careful and proper regard to the facts, to the authority so far as it was of assistance and upon a proper application of the statute. It follows that in conclusion, this application, despite its subtle and careful nature is one which has to fail and does.[33]MR ORMONDROYD: My Lord, just before my learned friend addresses you on costs there was one point which your Lordship did not deal with in your judgment, the point about the charge of the football teams to use the field.[34]MR JUSTICE LANGSTAFF: I took the view that was not of any assistance one way or the other for this reason. It is not I think argued by either of you that it is inconsistent with the land being a public recreation ground. You, for your part could not I think say that those who used it would have any right themselves to apply for registration because plainly their use would be permissive in so far as it was use at all. The way in which the Inspector dealt with that, as it seems to me, was appropriate. It did not seem to be centrally relevant to the interpretation of section 80 which this case depended upon.[35]MR ORMONDROYD: Yes.[36]MMR JUSTICE LANGSTAFF: Thank you for mentioning it.[37]MISS STOCKLEY: My Lord, in those circumstances, in relation to costs I do have an application for the defendant's costs. However I understand the claimant is legally aided and therefore I make an application for the usual order that the appropriate assessment of section 11 of the Access to Justice Act.[38]MMR JUSTICE LANGSTAFF: Mr Ormondroyd, you want to presumably--[39]MR ORMONDROYD: That is right detailed community legal funding assessment my Lord.

MR JUSTICE LANGSTAFF: Thank you both for your assistance.

[41]MR ORMONDROYD: There is also a matter of an appeal. I think I need to seek permission from your Lordship to appeal now. My Lord, excuse me for if my thoughts are not the clearest, having just heard your Lordship's judgment that in essence, my Lord this is an important point. Your Lordship's judgment says in terms that this is a reasoning which applies anywhere section 80 is relied on and that is not an uncommon, it is not an uncommon occurrence of village green enquiries for this to be relied upon, and my Lord, yes, I do seek permission to appeal on that basis.[42]MR JUSTICE LANGSTAFF: Whereas I am happy to accept that the case turns upon an interpretation on section 80 and that there has been no direct authority since Green as to the meaning of section 80, to which I have been referred, I do not think that the case is sufficiently arguable for me to grant leave. If you wish to have leave you have to go to the Court of Appeal for it.[43]MR ORMONDROYD: My Lord, yes. (Short Adjournment)[44]MR ORMONDROYD: I am very sorry to have to call you back in. My instructing solicitor pointed out to me, on a practical note, that 21 days to prepare an appellant's notice is going to be scuppered by the Christmas period. I just wanted to ask that we could have 21 days to file the appellant's notice, after receiving a copy of the transcript. My learned friend consents to that application.

MR JUSTICE LANGSTAFF: Yes, very well, 21 days after receipt of the approved judgment.

[46]You will find when the approved judgment comes out that I will say a little more about some of the consequences which have occurred to me and I had meant to include in my judgment but did not that would flow if you are right in your construction, not least that, for instance, people who live in the same household as council tenants, if one ceases to become working class because they have some other job which is not working class, they would then no longer use the land as of right but as a trespasser. That is an example. But I will mention that when I approve the judgment.[47]MR ORMONDROYD: Yes, thank you.

Cited in 2 later judgments