Later treatment: In R (Barkas) v North Yorkshire County Council [2014] UKSC 31, the Supreme Court held that the decision and reasoning in Beresford should no longer be relied on. The historical ruling is explained below alongside that later correction.
R (Beresford) v City of Sunderland [2003] UKHL 60 concerned whether long-standing recreational use of publicly owned land was “as of right”, allowing registration as a town or village green. The House of Lords allowed Mrs Beresford’s appeal. Its treatment of the public authority’s provision of the land was subsequently rejected in Barkas.
The Sports Arena and the registration application
The Sports Arena was an unfenced grassed area near the centre of Washington, Tyne and Wear. Washington Development Corporation laid it out and grassed it in 1974. Evidence established local recreational use from 1977, including games, dog walking and informal gatherings. Wooden benches were installed in 1977, originally for a royal visit, and a non-turf cricket wicket followed in 1979.
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The land passed to the Commission for the New Towns in 1989 and Sunderland City Council in 1996. Successive owners mowed the grass. After the council granted planning permission for a college on land including the Sports Arena, Mrs Beresford applied in 1999 to register the area as a town or village green.
The council, acting as registration authority, accepted that local inhabitants had used the land for lawful sports and pastimes for at least twenty years. It refused registration because it considered the use licensed by implication. The High Court rejected the judicial-review challenge, and the Court of Appeal upheld that result.
What “as of right” meant
The relevant version of section 22(1) of the Commons Registration Act 1965 required recreational use by local inhabitants “as of right” for at least twenty years. The phrase meant use without force, secrecy or the landowner’s permission. It did not require users to prove that they already possessed a legal right or personally believed that they did.
There was no dispute about force, secrecy, the period of use or the recreational activities. The immediate question was whether permission should be inferred from the council’s and its predecessors’ conduct. The distinction mattered because merely tolerating use was not the same as positively permitting it.
The House did not accept that only an express licence could defeat an application. Permission could be communicated through conduct. Examples included charging for admission or occasionally excluding users to demonstrate that access depended on the owner’s permission. Passive acquiescence alone could not have that effect; otherwise the concept of acquiring rights through long use would be undermined.
The House of Lords’ reasoning in 2003
The council relied particularly on mowing the grass and providing seating. The House held that these acts did not establish a revocable licence on the material before it. Lord Bingham considered the conduct equivocal: it could be consistent with maintaining an amenity used by the public as of right.
Lord Rodger likewise distinguished encouragement or acquiescence from a positive grant of revocable permission. Lord Walker emphasised overt conduct communicating that access depended on permission. He did not consider the maintenance and facilities sufficient for that purpose.
Lord Scott approached permission somewhat differently, examining its character objectively and considering that encouragement by a public authority could reinforce the appearance of permanent public use. The Law Lords therefore agreed on the result without expressing every part of their reasoning identically.
These observations explained their assessment of the evidence. They did not establish the general duty to maintain registered greens which the maintenance discussion might otherwise be taken to imply. More importantly, their application to this publicly provided recreational land was later rejected.
The statutory-right question and outcome
After the initial hearing, the House invited further argument about whether legislation already gave the public a right to use the land. That would have made the use “by right”, rather than the use “as of right” necessary for the claim.
On the case as argued, the House did not find an established statutory right preventing registration. Lord Walker considered that the evidence did not establish appropriation of the land as recreational open space. Lord Scott expressed reservations about statutory questions which counsel had not fully pursued, including the effect of powers to dispose of open-space land.
On 13 November 2003, the House allowed the appeal and quashed the council’s refusal. That outcome concerned the registration decision; it was not an award of damages.
Why Barkas rejected the decision
In Barkas, the Supreme Court considered a recreation ground provided and maintained under housing legislation. Public use pursuant to that statutory entitlement was “by right”, so it could not count as the qualifying use “as of right”.
The Court went beyond distinguishing Beresford. Lord Neuberger concluded that Beresford’s land had lawfully been allocated for public recreation for an indefinite period. Lord Carnwath explained that the new-town corporation’s statutory powers and approved development proposals supplied the legal context missing from the earlier analysis. Public ownership, provision and maintenance could not sensibly be separated from that context.
The Court expressly disapproved Beresford’s decision and reasoning. It should therefore not be cited as current authority that mowing and seating cannot establish authorised recreational use of council land. The statutory basis on which the authority provides the land must be examined. This does not mean that public ownership alone prevents every village-green application; Barkas’s reasoning concerned authorised use under the relevant powers.
Judgment sources
- Beresford — full House of Lords judgment, also reported at [2004] 1 AC 889.
- Barkas — Supreme Court judgment, particularly Lord Neuberger’s conclusions on Beresford and Lord Carnwath’s analysis at paragraphs 70–86.
