UK: Town And Village Greens: Clarification At Last

Last Updated: 21 July 2014
Article by Martin Garner

Summary and implications

An application to register land as a town and village green was once a dangerous weapon that could be used by anyone (predominantly local campaigners) to try and prevent redevelopment.

The law surrounding the registration of town and village greens was complicated and riddled with conflicting decisions. However, in Barkas v North Yorkshire County Council [2014] the Supreme Court clarified the law and simplified the "as of right" test used to determine whether land is capable of registration as a town or village green and therefore cannot be redeveloped without the permission of the Government. 


In Barkas, Scarborough Borough Council (the Council) had been the owner of a field since 1951. The field had originally been acquired by the Local Authority as part of a much larger parcel of land developed for housing.  However, the field in question was retained by the Council and kept as "recreation grounds" under section 12(1) of the Housing Act 1985.

The Council had maintained the field for at least 50 years – marking out a football pitch, arranging for the grass to be cut and erecting signs. The field was used extensively by local residents, dog walkers and children.

The Council eventually decided that it would like to allow a developer to build on the field. Expectedly, local campaigners applied to have the field registered as a town or village green under the Commons Act 2006 to try and prevent the redevelopment from taking place.

Section 15 of the Commons Act 2006 deals with registration of town and village greens and states that land can be registered as a town or village green where "a significant number of the inhabitants of any locality, or 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".

If the campaigners could successfully have the field registered as a town or village green under the Commons Act 2006 it would mean that nothing could be built on the land without the permission of the Government.

The application for registration of the field as a town or village green was rejected by North Yorkshire County Council. An application was then made for judicial review of that decision. That application for judicial  review failed in both the High Court and the Court of Appeal and the applicant ultimately appealed to the Supreme Court.

The application had been refused on previous instances on the basis the field had been used "by right" and not "as of right".


The final appeal was unanimously dismissed by the Supreme Court. The Supreme Court held that the local inhabitants' use of the land was "by right" and not "as of right", which meant that the land could not be registered as a town or village green.

The expression "as of right", is applied where land is used without a landowner's permission. There is major significance on the use of the word "as". It is the opposite of "by right" or "of right" which applies where a landowner permits use.

Consequently, as the public had a statutory right under the Housing Act 1985 to use the land for recreational purposes, their use was "by right" and not "as of right".

Therefore, the required 20-year period of qualifying use referred to in Section 15 of the Commons Act 2006 to enable the land to be registered as a town or village green had not started to run and would not start to run until the land was no longer a designated "recreation ground" under the Housing Act 1985.

It was also understandable that the Council had not objected to any public use of the field as the use had been "by right" as a "recreational ground" for public use under the Housing Act 1985.

The Supreme Court also held that the decision in R (Beresford) v City of Sunderland [2003] was incorrect and not to be relied on. In Beresford the House of Lords had decided that none of the relevant statutory provisions confirmed a right on the public to use land for recreational use and therefore the public's use of the land in that case was capable of being "as of right".  

Following the decision in Barkas it was clear that a local authority could allocate land for recreational use and therefore it could not be said that the public's use of the land was "as of right" rather than "by right". Beresford had therefore been decided wrongly and was not to be relied upon in the future.

Moving forward

The decision in Barkas will be welcomed by public authorities and developers as Beresford had previously made it difficult for local authorities to challenge applications to register public spaces as town and village greens.

Where the public are using land owned by a local authority as recreational ground pursuant to the Housing Act 1985, they now clearly do so under licence and with the permission of the local authority rather than "as of right" – this means that land used in this way cannot be registered as a town or village green whilst such use continues.

Developers may therefore want to consider land used in this way for redevelopment as this decision means that town or village green applications can be easily defended.

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.

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