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Rejection of Whitby village green application as not being as of right upheld the High Court

Case: R(Barkas) v North Yorkshire County Council v Scarborough Council [2011] EWHC 3653

Subject matter: Application for registration of land set out as a recreation ground under s.80 of the Housing Act 1936 as a village green under s.15 of the Commons Act 2006 where the use was just by not tenants of the estate built pursuant to that power but also by others who lived elsewhere

Issues: For land to be registered as a village green under s.15 of the CA 2006 the use of it for recreational purposes (lawful sports and pastimes) has to have been as of right  over the requisite 20 year period. So land held on trust for use by the public as open space would be by right. Although there had been no authoritative court decision on this, it has been generally accepted that use pursuant to a statute is use by right and NOT as of right and therefore does not satisfy s.15.

Held:  Local people had a legal right to use recreation ground which was set out under section 80 of Part 5 of the HA 1936 and maintained as such.  The right to use the recreation ground was not limited to those whose houses were provided under Part 5. Accordingly the use of the recreation ground was by right and not as of right as required by s.15 and therefore the Registration Authority had acted correctly in accepting the Inspector’s recommendation to refuse to register the ground as a village green.

Practical Points:

(1) Although permission to appeal was rejected by the High Court, it wouldn’t be surprising if this not sought and granted by the Court of Appeal.

(2) In paragraph 7 of the Judgment, the Judge refers to the Inspector concluding that “It appears to me to be a reasonable inference that the Field was set out an maintained as a recreation ground pursuant to s.80 of the 1936 Act.” As it is often the case that such estates have been laid out long ago, it is often not easy to obtain direct evidence of the basis of the laying out and use of open spaces that are used for recreational purposes, evidence from which this can reasonably concluded is clearly relevant.