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Village green decision on hold

Kent County Council has decided to defer any decision about the Downs, pending the outcome of another court case.

There is another village green application (near Whitby) that is known as the Barkas case – all these cases are named after the applicant, rather than the piece of land involved. As so often happens, this case pivots on the fine distinction between the use being “by right” or “as of right”, i.e. whether the users of the land have actually been given the right to use it, or whether they are are acting as if they had the right to use it.

The important additional feature in this case is that the land in question is owned by the local Council (as is the the Downs), who argue that use is “by right” (as do our Council). The Barkas case has been through public inquiry, and has been appealed against, and has worked its way up the hierarchy of courts, all the way to the Supreme Court. The Supreme Court heard the case at the beginning of April and will pronounce its decision in June or July.

In the light of this potentially landmark decision, KCC have sensibly decided to defer any decision on the Downs, and the village green application for Kingsmead Field in Canterbury.

Just a quick note to let you know that as a result of the decision at the Kingsmead meeting, we have decided to also put this case on hold until the Supreme Court’s decision in the Barkas case has been published. It does not make sense to refer this to Committee now when no doubt the same points will be made regarding deferment.

I will be in touch again once the Barkas case has been decided (unless our position changes for any reason in the meantime).

So, we wait, fingers crossed. Here’s the summary of the case from the Supreme Court website:

Case summary

Issue

Whether members of the public using a recreation ground, which has been provided for that purpose by a local authority in the exercise of its statutory powers, do so “by right” or “as of right”.

Facts

The Appellant applied to register a playing field in Whitby as a town/village green on under s.15(2) of the Commons Act 2006 as a significant number of local inhabitants had indulged as of right in lawful sports/pastimes on the land for at least 20 years. The land was acquired in 1951 as a site for the erection of council houses. S.80(1) of the Housing Act 1936 (consolidated in s.12(1) of the Housing Act 1985) gave local authorities the power to provide and maintain recreational grounds with the consent of the Minister.

The Appellant’s application was rejected by the Respondent local authority based on the Inspector’s conclusion (followed by the High Court and Court of Appeal) that, although the use of the land met all the requirements in s.15(2), the use for recreational purposes was “by right” and not “as of right”. Reliance was placed on obiter in R(Beresford) v Sunderland CC [2004], where the House of Lords expressed reservations about treating recreational users as trespassers acting as of right not only where there was an express statutory trust for the recreational land, but where “the land had been appropriated for the purposes of public recreation”. While the local authority was under no obligation to make the land recreational, the enabling enactment expressly gave it power, with ministerial consent, to provide a recreation ground in connection with housing, and was therefore land “appropriated for the purpose of public recreation”. It was also very difficult to regard members of public harmlessly using such land as trespassers.

The Appellant submits that the Court of Appeal misconstrued Beresford, and that there is no express statutory wording (as in other similar statutes) to confer a right to prevent the use being as of right. The recreational use of the land under the Housing Acts is entirely a matter of discretion.

Parties

Appellant name: Christine Barkas
Respondent name: North Yorkshire County Council

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