Introduction

The case R (Barkas) v North Yorkshire County Council & Anor ([2014] UKSC 31) reached the United Kingdom Supreme Court on March 6, 2014. The primary issue revolved around whether Helredale playing field ("the Field"), situated in Whitby, North Yorkshire, should be registered as "a town or village green" under section 15 of the Commons Act 2006. This case raised significant questions about the interpretation of "as of right" within the statutory framework and its implications for public land use.

The appellant, Christine Barkas, represented by the Helredale Neighbourhood Council, sought judicial review against the North Yorkshire County Council's (NYCC) refusal to register the Field as a village green. The Field, maintained by the Council for recreational purposes for over fifty years, was the center of contention regarding its eligibility for registration based on public use.

Summary of the Judgment

The Supreme Court, led by Lord Neuberger, upheld the decision of the lower courts to dismiss Barkas's application. The Court reasoned that as long as the land is held by a public authority for a specific purpose—in this case, public recreation—the public's use of the land is "by right" rather than "as of right." Consequently, the use does not meet the criteria under section 15(2)(a) of the Commons Act 2006 for registration as a village green, which requires that the use is "as of right."

Additionally, the Court addressed and ultimately disapproved the House of Lords' decision in Beresford, clarifying that when land has been explicitly allocated for public recreation by a statutory provision, the public's use of such land cannot be deemed "as of right" tracing back to separate claims for village green status.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to elucidate the distinction between "as of right" and "by right." Notably:

• R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335: Lord Hoffmann clarified the origins of "as of right" in land use, distinguishing it from "by right."
• R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70: Reinforced the tripartite test (nec vi, nec clam, nec precario) for "as of right."
• HE Green and Sons v Minister of Health (No 2) [1948] 1 KB 34: Denning J explained the application of recreational ground purposes under similar statutory provisions.
• Beresford [2001] 1 WLR 1327: A key House of Lords case that was distinguished and ultimately disapproved by the Supreme Court in this judgment.

Legal Reasoning

Central to the Court's reasoning was the interpretation of "as of right" within the Commons Act 2006. The Court emphasized that when land is held by a public authority explicitly for public recreation, the use by the public is inherently "by right." This usage is authorized under statutory provisions, negating the notion that the public's use is "as of right" in the prescriptive sense required for village green registration.

The Supreme Court also critically assessed the House of Lords' decision in Beresford, particularly questioning the notion that passive acceptance of public use could equate to an "as of right" status. The Court concluded that Beresford was wrongly decided in this context and should no longer be relied upon, thereby refining the legal landscape for future cases involving public land use and village green registrations.

Impact

This judgment significantly impacts the interpretation of village green registrations, particularly clarifying that land held by public authorities for specific purposes does not qualify for village green status based on public use alone. It delineates a clear boundary between "by right" (authorized use under a statutory provision) and "as of right" (use open to prescriptive rights), influencing how future applications for village green status are evaluated.

Furthermore, by disapproving Beresford, the Court reduces legal uncertainty surrounding the registration process, ensuring that only land without explicit statutory allocation for public use may be considered for village green status based on long-standing public use.

Complex Concepts Simplified

'As of Right' vs 'By Right'

Understanding the relationship between "as of right" and "by right" is pivotal in this judgment. Simply put:

• "By Rights": This refers to uses that are explicitly permitted or authorized by the landowner. For example, when a local authority designates land for public recreation, the public's use is "by right" because it is sanctioned under a statutory provision.
• "As of Right": This pertains to uses that occur without the explicit permission of the landowner but have been carried out openly and continuously for a prescribed period (typically 20 years) under conditions that satisfy the tripartite test (nec vi, nec clam, nec precario).

The key distinction lies in authorization: "by right" is authorized use under specific statutory provisions, while "as of right" is unauthorized use that may evolve into a prescriptive right.

Conclusion

The Supreme Court's decision in R (Barkas) v North Yorkshire County Council serves as a pivotal clarification in land use law, particularly concerning the registration of village greens. By distinguishing between "by right" and "as of right," the Court underscores the importance of statutory authorization in determining land use rights. This judgment not only streamlines the criteria for village green registrations but also ensures that public authorities cannot inadvertently trace public use of designated recreational land back to prescriptive rights, thereby maintaining clear boundaries within land use jurisprudence.

Legal practitioners, public authorities, and community groups must now navigate these clarified parameters when dealing with land use registrations, ensuring that the statutory frameworks governing public land are adhered to, and that the rights of landowners versus the public are appropriately balanced.