Permission, Public Access and Public Rights of Way – Barking up the right tree?

The Supreme Court’s judgment in Barkas v NYCC and Scarborough Borough Council.

The law relating to public rights of way and the registration of village green has a common thread.

Where public rights of way are claimed on evidence of use by the public for 20 years, the use must have been “as of right”.  Use must be open, without force and without permission.  The same requirement applies to register land as a village green.  The development of the law by the courts has, therefore, often overlapped.

“As of right” use might commonly be regarded initially as trespass.  The public who do not have a right to be on the land use it continuously and thereby establish the right.  Plainly if they have the right to be on the land, this is not the situation.  Where there is a right to use the land, any use is “by right”.  If the right is enjoyed by the public then there public use as a whole is by right.

The issue was considered by the House of Lords in R v City of Sunderland ex parte Beresford [2003] UKHL 60 (“Beresford”).  It has just been revisited by the House of Lords’ judicial successors, the Supreme Court, in R (on the application of Barkas) v North Yorkshire County Council and another [2014] UKSC 31 (“Barkas”).

The core facts in Barkas and Beresford are not on the face of it so different: the minutia maybe more so.  Importantly, both involved publicly owned land in respect of which applications to register village greens were made.

The driver for the application in Beresford was a proposal to build on the land that the public had used.  In the House of Lords their Lordships found that use had been “as of right”, even though the land had been maintained by the public authority for some years as an area for recreation.  Benches had been provided, and the public were encouraged to use the land.  It resulted in some complex questions about implied permission and tolerating use by the public.

Unlike Beresford, where the land was not specifically held by the Authority for public recreational purposes, in Barkas the land in issue was subject to a statutory provision to provide for such a use. At all stages up to and including the Court of Appeal the decision had been that the public’s use had been because of the manner in which the land was owned and had, therefore, been “by right”.

Was the basis upon which the public authority owned the land such a defining issue?

In the Judgment dated 21 May 2014, the Supreme Court agreed with the lower courts and upheld the argument that the public could not acquire a right where they had used land which was statutorily designated for public recreation.

For many that would have been enough.  Unusually, though, the Supreme Court went further.  It looked at the Beresford judgment and has ruled that it should no longer be relied upon, despite this running counter to judicial precedence.

The Supreme Court Justices held that Beresford was wrongly decided.

You can see the judgment here:

Giving the leading judgment, the President of the Court, Lord Neuberger found that the Council in Beresford had lawfully allocated the land for the purposes of public recreation for an indefinite period and thus public use of the land had been “by right”.

Earlier in his judgment, Lord Neuberger had clarified the law.  In paragraph 24 he says:

I agree… that where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land “as of right”, simply because the authority has not objected to their using the land.”

That is a logical view.  If an authority owns land and intends the public should use it for recreation, why should that later be turned back on the authority or a successor as evidence that the use was assertive of a public right?

In three cases we have dealt with recently there has been land in the ownership of a local authority that has had a bearing on the issues in the case.  In one of these, the Supreme Court’s Judgment would have prevented a right of way being recorded on our client’s land.

As practitioners we welcome the decision of the Supreme Court.  Of course people would like access and rights over land but how pre-existing use has occurred is surely something that Parliament intended should be relevant and be taken into account.  The position in Beresford had resulted in some very unnecessarily complex interpretations.  Not all of these have been thrown out, with Lord Neuberger accepting that where the landowner stands by and does nothing about people accessing land that this is consistent with use being “as of right” but in respect of the findings in the key section of Lord Scott’s judgment in Beresford, Lord Neuberger says these “cannot be relied on, as they include passages which are simply wrong in principle and contrary to well-established authority”.

Clearly one now needs to consider in any case whether the land affected by the claimed right of way (or any part of it) has ever been land over which some right of public access may have occurred in the past even if only for a temporary period with the agreement of the landowner.  With the large scale sale of public land to the private sector, this may be not uncommon.  Builders may look upon this decision as removing much of the potential for challenge where they acquire former publicly owned open space for development.  On the other side of the fence, local people will no doubt feel concerned that their use of such land will be curtailed and they will have no ability to fight actions for development.

There will also be further debate on implied permission to use land.  Whilst the Justices said the position with publicly owned land was different to that of privately owned land, there may well be circumstances where this decision may apply to other land, such as private land in receipt of public money where elements of access are involved.

As always, we will be keeping a watchful eye, and will be relying on this decision in the future.

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