R (on the application of Beresford) v Sunderland CC [2003] UKHL 60
Property Law – Commons – Town or village green – Registration
Facts:
A new town development created a town plan that identified an open space in the town as a playing field/parkland. For over 20 years, the open space was used for recreational use, was mowed and kept in useable condition. Access was provided to the public. The land was sold to the council and the practice continued. Beresford applied for registration of the land on the ground that it had been used “as of right” under s 22(1) of the Commons Registration Act 1965 (the Act). The council claimed it was a use of right by an implied licence.
Issues:
Whether a claim to use the land “as of right” within the meaning of s 22(1) of the Act was defeated by an implied licence.
Held:
Appeal allowed. The activity of the authority over the last 20 years and more did in no way indicate that the use of the land was revocable at any time due to a licence. The act of mowing the grass and maintaining the area for general public use encouraged the area to be used for recreational purposes, and continued without any break of such use for more than 20 years. No other evidence could reasonably infer that the land was available to be used, the use had been “as of right” within the meaning of s 22(1) of the Act. Thus, the refusing of the application for the land to be registered as a town green would be quashed.
Updated 15 March 2026
This case summary accurately reflects the decision in R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60. Readers should be aware, however, of one significant legal development: the Commons Registration Act 1965, under which this case was decided, has been largely repealed and replaced by the Commons Act 2006. The 2006 Act now governs the registration of town and village greens in England and Wales, with the key provision being section 15 rather than the old section 22(1) of the 1965 Act. The substantive concept of use ‘as of right’ (nec vi, nec clam, nec precario) remains central to town and village green registration under the 2006 Act, and the reasoning in Beresford retains persuasive relevance. However, the law on town and village green registration has developed considerably since 2003, including through cases such as R (Lewis) v Redcar and Cleveland BC [2010] UKSC 11 and R (Barkas) v North Yorkshire CC [2014] UKSC 31, the latter of which clarified that use of land by the public pursuant to a statutory right or permission does not constitute use ‘as of right’. Readers should therefore treat this case as an important authority on the meaning of ‘as of right’ but should consult the Commons Act 2006 and subsequent case law for the current legal framework.
