UK: Town And Village Greens: Recreation Grounds And Playing Fields Not Out Of Bounds!

Good news for developers and landowners, particularly local authorities, following a recent high profile decision.

In R (Barkas) v North Yorkshire County Council and Scarborough Borough Council [2012] EWCA Civ 1373 the Court of Appeal found in favour of a local authority landowner against a claim by local residents to register a playing field as a village green. Does this mean recreational spaces are no longer vulnerable to applications to register them as town and village greens?

Background

Historically, town and village greens ("TVG") used by local inhabitants for lawful sports and pastimes have been recognised and protected by law. A TVG need only resemble open space and pastimes can include picnics, dog walking, fetes or an informal cricket match. There is no distinction between a "town green" or "village green" other than the locality. The position is now governed by the Commons Act 2006 ("CA 2006") which provides that any land in England (excluding the New Forest, Epping Forest and the Forest of Dean) can be registered as a TVG if it has been used by local people for recreational purposes "as of right" that is without permission, force or secrecy, for at least 20 years.

A green can be in private ownership but many greens are owned or maintained by town and parish councils. Once registered as a TVG, future development of the land by the owner is prohibited.

The Barkas decision

Facts

Whitby Village Green, North Yorkshire was described as having "all the appearance of a typical municipal recreation ground" adjoining three housing estates, and had been used as a playing field since at least 1948. In October 2007, some of the residents made an application to register the playing field as a TVG. The field was owned by Scarborough Borough Council (having been acquired by its predecessor in 1951) and was maintained as a playing field under the provisions of the Housing Act 1936 ("HA 1936") (and its statutory successors). These provisions give local authorities statutory powers to appropriate and maintain recreation grounds in connection with council housing.

Held

The Court considered the requirements under Section 15 of the CA 2006 for use of the land "as of right" as opposed to use "by right" for recreational purposes and found that the use of the playing field in this case was "by right" not "as of right". Consequently, the application failed. Until Barkas there had not been any authoritative court decision on this issue but it was generally perceived that use pursuant to a statute is use by right as opposed to use as of right required under Section 15. The Court analysed in particular the decision in R (Beresford) v Sunderland City Council [2004] 1 AC 889 where the House of Lords commented that use of the land for lawful sports and pastimes pursuant to a statutory right to do so would be inconsistent with use "as of right".

The Court in Barkas held most statutory powers do not expressly grant rights to the public but focus on duties of the local authority. The fact that the relevant statutes did not confer an express right on the public did not alter the fact the field had been appropriated for the purpose of public recreation. The use of the playing field was said to have met all the other requirements to be a TVG. However, as the playing field was set out and maintained by the local authority under its statutory powers, the use was "by right" not "as of right".

Comment

Applications for TVG registrations have caused controversy between landowners/developers and local residents, with a spate of recent decisions favouring the latter. The Barkas decision may redress this balance by ensuring that playing fields/recreational grounds falling within the above criteria are not protected from future development by designation as a TVG. Such land will become attractive to developers and broaden the local authorities' options in dealing with such land, albeit local authorities must still act in accordance with statutory powers regarding any change of use.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.