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  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  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.
The Deregulation Bill – debate commences in the Commons after the Government respond to the Joint CommitteePosted: February 3, 2014
The Deregulation Bill which will change key elements of the law and procedure on rights of way started its formal debate with the few Members of Parliament attending the debate today raising issues of European Union membership and the cost of living.
In truth the changes to rights of way are probably quite niche and beyond the interest of many Members unless they have particular experience or have been lobbied by their constituents.
And whilst the debate continues, all sides outside the House are asking for the Bill to be introduced.
Rights of Way legislation is frequently packaged with other matters which are often strange bedfellows and the Deregulation Bill is probably one of the most extreme examples of this. Business regulation is clearly a more engaging subject for MPs.
Speaking for the Opposition, Chi Onwurah MP did welcome the provisions for the rights of way changes provided that they are all accepted. That has been the position on all sides so it gives hope that the changes will make it through this Parliamentary process.
The Government published last week its response to the Joint Committee that reported in detail on this legislation. It said it is expected that local authorities will save around £2 million a year through the measures for recording new rights of way by reducing bureaucracy. Let us hope it sees the backlog of applications cleared within a realistic timeframe.
On the proposals of most interest to landowners, namely the new rights to seek diversions, the Government said:
“The Government recognises that there are difficulties with rights of way that go through family homes or conflict with current land management. We believe that the rights of way clauses in the Bill will address these concerns.
“Through some of these clauses DEFRA is working towards making effective the legislation that provides for a statutory “right to apply” for landowners. This enables landowners’ including householders, to make a formal application for diversion or extinguishment of a right of way on their land and appeal to the Secretary of State should the local authority refuse the application or fail to consider it.
“There are also clauses to ameliorate the effect on landowners of unrecorded or newly discovered public rights of way. We are introducing a presumption in favour of a landowner’s request for a diversion under certain prescribed circumstances, for example where a public right of way goes through a private garden, or working farmyard, or other areas where privacy, security or safety is an issue.”
The response also indicate that it is intended to consult on issues of motor use on public rights of way and minor sealed roads.
So it is so far so good.
“Light Touch” was a recurring theme at the two conferences into the changes proposed to rights of way law in the Deregulation Bill this month.
The problem is simple to identify. Many authorities have significant backlogs in processing claims to add to or modify the definitive map of rights of way. They have similar delays when handling diversion applications. These backlogs occurred when times were good but now times are hard and rights of way budgets sit at the top of the list for cuts. Add to that an increasing pressure on the Planning Inspectorate and the mess looks even worse.
So the buzz word is “light touch”. Do more with less because you have to.
The Leeds conference was sceptical. Maybe the realistic northerners had it right.
London, however, was more positive. The big guns were out in London – Open Spaces, Ramblers, BHS, Byways and Bridleways Trust, South Pennine Packhorse Trails et al.
Yes I am used to having Kate Ashbrook in the room ready to pounce on my diversion proposal being explained to a Parish Council. Or to sit opposite Alan Kind as an opposing advocate at a public inquiry. Having all the guns primed and loaded and ready to fire was, however, a different matter.
Yet in London any scepticism for my suggestions for a lighter touch came from the landowner side. You won’t achieve it, I was told. But if you don’t ask you don’t get.
At the end of the day as we packed up I was approached by a delegate. She was from an authority in the Midlands. She found my ideas to be a “breathe of fresh air” . The applicant handling their own diversion application; the council not having to support every order that it made. These were things (already practised by a few enlightened authorities) that her own authority had told her were not possible and could not be contemplated.
I felt that like many she is struggling to find a solution to reaching the top of the mountain and others are holding her back. So DEFRA must now play its part and look for best practice that cuts costs and delay. It must issue guidance to authorities to use the powers they have and guide them in the use of those powers constructively. As practitioners we must expect that the right things are done the most expedient way.
“Light Touch” is good but it needs a change of attitude at every level and for those in councils and at DEFRA to ask whether the things we have always done still need to be done. If, as some authorities have already discovered, there is a quicker, cheaper, way then that should be the standard. So much of this needs no change in the legislation particularly when orders come to be progressed.
The proof will come in the New Year once the Deregulation Bill is under way. As MPs debate it, DEFRA will have the time to look at existing arrangements and put guidance together based on what emerged from the Leeds and London conferences.
The Deregulation Bill will implement the long-awaited “right to apply” for landowners giving them the right to have their path diversion applications determined. At the moment the ability to proceed is in the hands of the council which has a complete and unquestionable discretion as to whether to accept or take forward a diversion proposal. Landowners will have to pay the costs of their proposals.
The worry is that a system which “copes” at the moment by rejecting applications because of a lack of resources in rights of way departments or refuses them on the grounds of the cost to the public will implode with an inrush of work.
That scenario is in no one’s interests.
So what is the solution? Most landowners appreciate that moving a path is not a five minute affair or one that is achieved easily. The public right is being changed and the public have a say. If a landowner intends building a house, he will expect to pay for the cost of the architect and not expect the local planning officer to do it for him. Many already lay the ground for a diversion before tackling the Council.
I came across a pilot where landowners were responsible for the work usually undertaken by the council. They prepared the plans, consulted the public and wrote the report on the diversion. The guidance was very detailed and set out exactly what the council required. This work was then reviewed by the council and a decision taken. It seems a good start to change.
In West Sussex, if your diversion is agreed, but objections are made then the landowner has the responsibility of presenting the case when it goes to the Secretary of State. How sensible is that? The landowner explaining why the diversion is in his or her interests, rather than having this said for them by the council. The landowner can then call what evidence might be appropriate to answer the case made by the objectors.
Combining these ideas seems to have a great deal of logic. Let the landowner seeking the diversion make the application and send out the consultation letters. Let the landowner arrange site visits if people want to see what is proposed. Let the landowner compile the responses and let the council be the decision taker. If the matter is unopposed, the decision can be taken by officers. If there are objections, a committee can determine the application. As the matter moves forward, the landowner can present the case to the Secretary of State if there are objections.
None of this actually requires a Deregulation Act, because it happens now. Yet it is not the standard and is a scenario most councils seem to reject.
The Deregulation Bill does however end the culture where it is easier to say no than yes. It means councils will have to do something.
If someone wants to take their case to court they pay a fee to the court. It helps fund the administration of justice. Why not a fee to the council and the secretary of state to facilitate the determination of the case for a diversion? I am not advocating that landowners are fair game and can afford to pay fees unquestioning, but the reality is that many spend considerable sums on proposals that fail when the council says “no” without even going through the pre-order consultation. A straw poll of our clients suggests overwhelming support for a system where they pay the costs and have control of their own case.
We need to standardise the approach across England. In implementing the Act we need DEFRA to produce a model that works.
And we need to embrace change. Landowners currently pay upwards of £1,000 to advertise diversions in “public notices” even in these days of Twitter and Facebook. Get the notices on to a website where people can easily access them, not take pot luck that they might come across them in print. Free up that cost and apply it to the public cost of path diversions. Let us do consultation by email. Let us realise that times have changed.
I shall be speaking at 2 conferences in December where the way the Bill will be implemented will be discussed with DEFRA and local government. I shall make this case to them. I know it will not be universally popular with landowners because some will perceive that it is placing a financial burden upon them. But if a diversion is going to benefit you, that cost has to be weighed with those benefits. My clients tell me they are willing to pay to have their cases given a fair hearing which tells me all I need to know.
If you have a view or want more information, complete the form below and I will get back to you.
Michael Wood, Director