Legal Update – Council land not held to be Village Green

Report on R (Barkas) v North Yorkshire County Council

Village greens have been in the local news a lot over the past year or two, the Newhaven beach case being particularly prominent.  The Commons Act 2006 permits a local resident to apply to register land as a village green in certain circumstances. 

To be successful, the applicant must be show that the land had been used by a “significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.

The Supreme Court decided the case of Barkas on the 21st May 2014, following an appeal by the applicant against the decision of the Court of Appeal, which had upheld a North Yorkshire County Council decision not to register land as a village green.

The Supreme Court held that North Yorkshire County Council was right to turn down an application to register the land held by a local authority, which for many years been used as a recreation ground.

So where, we hear you ask, did this application fall down, given that the land was already in use as a recreation ground?  The key point, the Supreme Court said, was that the use of the land was not “as of right”.  In order for use to be ‘as of right’ it must be shown that the land was used for lawful sports and pastimes without force, without secrecy, and without permission.

However the local authority had held the land pursuant to its powers under the Housing Act 1985, which allowed the local authority to acquire land for housing purposes and to appropriate parts of the land for use as recreational ground.  On this basis, it was considered that a reasonable local authority would have considered the public's presence on the field as being pursuant to their statutory right to be on the land and to use it for recreational activities. It then follows that use of the land by the public was “of right” (i.e. with permission) rather than “as of right” (i.e. without permission).

The decision by the Supreme Court in Barkas is likely to have broader implications for any applications to register as village green land held by local authorities, as it may affect land held under other statutory powers.

For those of you who are interested in the Newhaven case, the Supreme Court is due to give its judgment later this year – watch this space!

If you would like advice on law around village greens please contact Richard Palmer, commercial property solicitor at Lawson Lewis Blakers, on 01323 720142.