R (On the Application of Barkas) v North Yorkshire County Council and another [2014] UKSC 31

This week sees the “May Bumps” in Cambridge. It is a curious affair. Over 4 days, starting on Wednesday college rowing VIII’s pursue each other up the Cam over a roughly 2000 metre course with the ultimate aim of becoming “Head” of Division 1. It is a cross between tag and snakes and ladders, but with boats. It is a peculiarly nerve wracking affair for many reasons, not only because of the element of cat and mouse, but also the starts, in which the boats must be held in the correct position one and a half boat lengths apart (the cox holds a chain attached to the starting stations on the bank). A small cannon signals 4 minutes to go before the start; at about a minute before the start the boats are pushed out into the stream by a pole, ready to go, poised, everything in total silence. The coach counts down the seconds, ten, nine, eight…..then the cannon fires again to start the race and you go like hell to get away from the boat behind, and catch the one in front. I still feel sick thinking about it.

In the lower divisions the action is often crazy, chaotic and comic with plenty of crashes. At the elite end the crews are pretty good and it is tough and even cruel; Cambridge college rowing has always been stronger than Oxford for a number of reasons I won’t bore you with here. In the 1980’s my own alma mater, Downing College, was becoming the new force on the river, and produced some crews which were both beautiful and powerful, and achieved the coveted May Headship, lost it in dramatic and brave circumstances, and then regained it the next year with a brute of a boat with the “Goldie” (Cambridge reserves) stroke Dominic “sex God” R****, 2 full “Blues” and some very classy oarsmen round them. Jez, a Cambridge lightweight and marathon runner, topped it off at bow. It went – and I can promise sounded – like a particularly angry and precision engineered steam train.

Rowing was something of a religion at Downing, which I have labeled a “Nova Sparta” in its atmosphere of ridiculous dedication to sport as well as academia. I was disappointed never to make the elite “May” crew, but did win my oars twice, rowing over as the more junior Head of the Lents as part of a another formidably powerful and smooth crew which claimed the scalp of beating all comers at the Bedford Head time trial that term in a minus 10 degree ice storm, including the Goldie crew. It had that thing that all really good boats have, which some coaches call “swing”. It meant it went with an effortless, smooth rhythm. I and my friend Jon also had quite a lot to do with coaching the nascent women’s rowing, not just at Downing but at other colleges, particularly Emma and St Cats. They did very well, particularly St Cats, which won me “a prow” for gaining for successive bumps in four days at least twice. An produced 2 captains of the Women’s University Club. We were in some demand because we treated the “ladies” not as “girlies” but as units of ergonomic production. In short, we were hard and unforgiving and I was apparently rather aggressive as a coach, but that is what they wanted.

Now, I may have allowed my dedication to rowing (see also under this heading “girls” and “IPA beer”) to get in the way of my studies, since my land law tutor wrote on my end of year report “This man has done no work all year and will pay the inevitable price in the exam.” It was, therefore, a matter of considerable satisfaction to me to achieve a 1st in land law. He was quite good about it, in fact. I still remember him batting me playfully around the head with some rolled up paper and cackling as he shouted “Don’t trust this man!” over and over.

Where is all this going? Well, the one thing most students remember from land law (a subject which is, I am afraid, often ridiculously badly taught) is the ghastly phrase “nec vi, nec clam, nec precario” – without force, without secrecy, and without permission or licence. This idea underpins all claims to establishing title to land and land rights by prescription.

Which leads me to town and village greens and the Barkas case. For some reason I have found that for a not insignificant part of my career I have spent time in town halls, village halls and council offices arguing about or sometimes chairing public inquiries into whether land should, or should not, be registered as a town or village green.

The reason that the status of land is significant and why these inquiries are often fought with a ferocity which would match the battle of the Somme is very simple. Village green status effectively prevents development. Thus the use of applications to register land as a town or village green is the weapon of choice for those opposed to potential development in the area. These public inquiries are always highly entertaining, with local activist defending their area with great conviction and dedication. They also almost invariably involve a site visit at a scheduled time, when, surprise surprise, the piece of land in question will resemble the site of a veritable carnival or kindergarten. Un-announced site visits often provide a different impression.

Often the land which is the subject matter of these applications bears little resemblance to the often pictures ideal of the classic green. But rules are rules, and if they apply, that’s it.

The original idea was that these applications could be dealt with by local authorities charged with maintaining the record of what land had the status. In fact, by the mid 1990’s the applications had become widespread indeed and became a sort of cottage industry which spawned a mass of litigation with cases going all the way up to the Supreme Court on numerous occasions.

In practice there are three key aspects to these cases: the length of use; the amount of use; and the necessary quality of use. Essentially Under both the Commons Registration Act 1965 and now the Commons Act 2006 the question of registration turns on the test of whether:

“a significant number of the inhabitants of any locality, or of 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…”

In a style which would amaze the layman (or perhaps not) each and every word, phrase and nuance of the test has been picked over by some of the finest legal minds in the country and proved controversial. Here is an extract from a recent skeleton argument which I used in the case referred to below, and which more or less sums it all up (I have deleted the footnote cross references because they mess up the blog, for reasons beyond me):

“The different elements of the definition
Land…

1. There is no need to show use of every square inch. “A common sense approach is required in considering whether the whole of the site was used. A registration authority would not expect to see evidence of use of every square foot of the site, but it would have to be persuaded that for all practical purposes it could sensibly be said that the whole of the site had been so used for 20 years”.

..on which for not less than 20 years…

2. The 20 year period must be the 20 years ending immediately before the section 13 applications was made: see the “Trap Grounds” case.

…A significant number…

3. “Significant” does not have to mean considerable or substantial. The requirement is that the numbers of people using the land has to be sufficient to indicate that their use of the land signifies that it is in general use by the community for informal recreational use, rather than occasional use by individuals as of trespassers.

…of the inhabitants of any locality…

4. “Locality” means a legally recognised entity such as a parish or manor.  Given the extension of and development of the law in respect “neighbourhood” or “neighbourhoods” this no longer provides much area of contention.

…or of any neighborhood within a locality…

5. “Any neighbourhood within a locality” is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries. A neighbourhood does not have to be within a single locality.

6. A “neighbourhood” need not be a recognised administrative unit. A housing estate can be a neighbourhood. But it cannot be any arbitrary area drawn on a map; there must be a degree of cohesiveness.

7. However it is clear that the neighbourhood must be wholly within one “locality”.

…have indulged in lawful sports and pastimes…

8. “lawful sports and pastimes” includes informal recreational activities such as walking, walking with dogs, and children playing. However, it does not include walking of such a character as would give rise to a presumption of a right of way.

…as of right…

9. Prior to the decision of the House of Lords in Sunningwell, it had been held that user “as of right” meant that the persons using the land had to have a belief that they were exercising a right claimed by the inhabitants of a particular locality. After Sunningwell it is clear that the words phrase “as of right” simply means that the use must be made openly, without force, secrecy or permission.

10. Force is not restricted to physical force, violence or threat. User is “by force” if it is the face of obvious opposition, and hence use by climbing over fences or gates, ignoring notices which prohibit entry, or if in the face of protest from the landowner.

11. Permission can be express, orally or in writing or by notices which permit a temporary right to use the land. But permission cannot be implied from inaction or acts of encouragement of the landowner.

12. In  R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11 [2010] 2 AC 70 at paragraph at 36 Lord Walker said that in the light of the authorities he had:

“…. no difficulty in accepting that Lord Hoffmann was absolutely right, in Sunningwell…to say that the English theory of prescription is concerned with “how the matter would have appeared to the owner of the land” (or if there was an absentee owner, to a reasonable owner who was on the spot).”

29. In paragraph 67 of his speech Lord Rodger analysed the structure of section 15(4) of the 2006 Act (paragraph (a) of which corresponds to subsection (1A) of the 1965 Act as amended):

“In the light of that description it is, I think, possible to analyse the structure of section 15(4) in this way. The first question to be addressed is the quality of the user during the 20-year period. It must have been by a significant number of the inhabitants. They must have been indulging in lawful sports and pastimes on the land. The word “lawful” indicates that they must not be such as will be likely to cause injury or damage to the owner’s property: see Fitch v Fitch (1797) 2 Esp 543. And they must have been doing so “as of right”: that is to say, openly and in the manner that a person rightfully entitled would have used it. If the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right (see R (Beresford v Sunderland City Council [2004] 1 AC 889, paras 6, 77), the owner will be taken to have acquiesced in it – unless he can claim that one of the three vitiating circumstances applied in his case. If he does, the second question is whether that claim can be made out. Once the second question is out of the way – either because it has not been asked, or because it has been answered against the owner – that is an end of the matter….”

13. However, right must be “as of right” not “by right”: see R (Barkas) v North Yorkshire County Council and Scarborough Council [2011] EWHC 3653 (Admin) and [2012] EWCA (Civ) 1373, dealt with further below.

So, as you can see, this has generated an awful lot of argument, and quite a lot of cases involve land held by local authorities; that is because such land is often left open for informal recreation by accident or design. However, there is one part which has now been clarified – the meaning of “as of right” where a council or corporation may hold land under some statutory power to allow recreation on it.

Early last year I was instructed to resist an application on behalf of a local authority (Bradford). The Council had acquired 26 acres of property which included the land by virtue of a conveyance dated the 23 July 1954 made between a citizen and The Lord Mayor Aldermen and Citizens of the City of Bradford. The land comprised in the conveyance forms part of what is now known as the Allerton Estate Bradford. Subsequent to its acquisition the Council commenced construction of Council house dwellings in 1959 which development continued until the late 1960’s. As part of the estate development highways and open spaces were laid out and constructed within the estate and these were the subject of the application.

The Council’s records showed that the property was acquired pursuant to section 52 of the Housing Act 1936. The property was held/administered by or under the Council’s public works housing sub committee. Despite an exhaustive search by estates management no evidence has been found in respect of any appropriation of the Property.

Within the larger estate there were several pieces of open space which is typical for this type of 1950’s Council housing development.

Section 80(1) of the Housing Act 1936 provided as follows:

“(1) The powers of a local authority under this Part of this Act to provide Housing accommodation, shall include a power to provide and maintain, with the consent of the Minister and if desired jointly with any other person, in connection with any such housing accommodation, any building adapted for use as a shop, any recreation grounds or other buildings or land, which in the opinion of the Minister will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.”

Section 79(1)(a) of the 1936 Act provided as follows:

“Where a local authority have acquired or appropriated any land for the purposes of this Part of this Act then without prejudice to any of their other powers under this Act the authority may (a) lay out and construct public spits or roads and open spaces on the land.”

By the time of the inquiry the effect of land so acquired and laid out for a public purpose on the acquisition of town or village green status was considered both at first instance and in the Court of Appeal Barkas, cited above.

The argument I ran was that where a local authority acquires and lays out a piece of land under a statutory power to do so for the benefit of the public then following the logic of Barkas and earlier observations in R (Beresford) v Sunderland City Council [2004] 1 AC 889 [2003] UKHL 60, the land had been used “by right” and not “as of right”. See in particular the speeches of Lord Scott at paragraphs 29-30 and Lord Walker at 72, 87 and 88. In short:

(1) There is a distinction between use “as of right” and use “by right”.

(2)  That if a statute properly construed confers a right on the public to use land for recreational purposes their use of that land will be by right and not as of right.

(3) That section 10 of the Open Spaces Act 1906 Act is an example of land which is provided by a local authority as open space which the public use for recreational purposes by right: see Barkas in the Court of Appeal at paragraph 26 (Sullivan LJ).

(4) There is no sensible reason for drawing a distinction between land held under section 10 and land which has been appropriated for recreational purposes under some other enactment (ibid at paragraph 34)

At paragraph 42 of the judgment of the Court of Appeal in Barkas Sullivan LJ said this:

“It is “very difficult”, if not impossible, to regard the local inhabitants who indulge in lawful sports and pastimes on land which is provided by a local authority as open space under the [Open Spaces Act 1906], as public walks and pleasure grounds under section 164 of the 1875 Act, or as a recreation ground under section 80 of the 936 [Housing] Act, as trespassers. The underlying difficulty may well be the need to apply private law concepts in a public law context. The former focuses upon rights, the latter upon duties. Most statutes dealing with local authorities do not expressly confer rights on members of the public, they tend to impose duties upon the authority and thereby confer rights that are enforceable as a matter of public law. The local inhabitants can fairly be said to have a statutory right to use land which has been “appropriated” for lawful sports and pastimes because the local authority, having exercised its statutory powers to make the land available to the public for that purpose, is under a public law duty to use the land for that purpose until such time as it is formally appropriated to some other statutory purpose under section 122, or in the case of a recreation ground provided and maintained under Housing Act powers (now section 12 of the 1985Act), a formal decision is taken that it shall be used for some other housing purpose.”

The argument succeeded before the Inspector.

Last month the Supreme Court considered the Barkas case, and reached the same conclusion. At paragraph 20 – 21 Lord Neuberger said this:

“20. In the present case, the Council’s argument is that it acquired and has always held the Field pursuant to section 12(1) of the 1985 [Housing] Act and its statutory predecessors, so the Field has been held for public recreational purposes; consequently, members of the public have always had the statutory right to use the Field for recreational purposes, and, accordingly, there can be no question of any “inhabitants of the locality” having indulged in “lawful sports and pastimes” “as of right”, as they have done so “of right” or “by right”. In other words, the argument is that members of the public have been using the Field for recreational purposes lawfully or precario, and the 20-year period referred to in section 15(2) of the 2006 Act has not even started to run – and indeed it could not do so unless and until the Council lawfully ceased to hold the Field under section 12(1) of the 1985 Act.

“21. In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land “by right” and not as trespassers, so that no question of user “as of right” can arise….”

This authority is a potent weapon for local authorities. They are creatures of statute and their power to acquire. hold amd lay out land land which the public use can often be attributed to a similar statutory power. It is also worth noting that unusually the Supreme Court went on to expressly disagree with and overrule the earlier decision of the House of Lords in Beresford. In that case arguments about the statutory basis on which the local authority held the land in question (which was a sports ground) were touched on, but hadn’t been run by Counsel for the local authority involved. In the event, the Supreme Court decided that they should have been, and declared the actual decision wrong. It seems their Lordships are concerned about the amount of time and money local authorities have been spending on these issues, and want do anything they can to kill off applications at an early stage, at least where land is held for public purposes.

Meanwhile, yesterday (Wednesday) evening, Downing Women’s 1st VIII  (“DCWBC W1”) returned to the Head of their division, rowing down Clare. They have become the pre-eminent force in Cambridge women’s rowing. Downing Men’s 1st VIII  (DCBC M1) is second in men’s division, chasing an excellent Caius crew, whilst in turn being pursued by (the hated) Lady Margaret. I am not sure if the link works on this blog, but there is plenty of footage on youtube, like this of last year:

(If the link doesn’t work, just search youtube under “Cambridge May Bumps 2013”).

Good luck for the rest of the week, guys.