Barkas case: Judicial anarchy on the village green

Was the Supreme Court right to overrule the leading village greens case of R (Beresford) v Sunderland City Council (2003) in its recent judgment in R (Barkas) v North Yorkshire County Council (2014; pdf)? There is a strong argument to suggest Lord Neuberger et al have overstepped the mark in declaring Beresford no longer good law – in a gross breach of the rules of judicial precedent on which our law relies. The result will be that it will be far more difficult from now on to have land designated as village greens, protecting it from development.

  The Supreme Court is supposed to accept earlier judgments of the same court, even if the current incumbents think they are wrong, unless there are very good reasons not to, such as a material change in circumstances or strong public interest. That allows for legal certainty, so people can act according to the known law, as examined and approved by the highest court in the land, rather than seek to rerun a similar case a few years later in the hope that the judicial dice might fall a different way. That is the principle that Neuberger et al have thrown to the four winds in disapproving Barkas.

   There are supposed to be limitations on the rare occasions when the Supreme Court can breach precedent and overrule itself. In particular the overruling must help to resolve the case before them. That was not so in Barkas. Lower courts and the Supreme Court itself had all resolved the case (rejecting the application to turn a piece of land in Whitby into a village green) by distinguishing it from Beresford – different facts, different law. There was no requirement to then go on to overrule Beresford – indeed the rule is that they should not go on to overrule the earlier case. But the Supreme Court Justices did so anyway.

   Further, they put themselves in the bizarrely contorted position of relying on obiter dicta in Beresford (remarks by the judges in that case that are not supposed to be binding) for their own judgment in Barkas while overruling the substantive judgment in Beresford – which is supposed to be binding. We seem to have entered an era of judicial anarchy.

Barkas – facts and legal issue

The case hinges on the ambit of the 2006 Commons Act s. 15, which allows local people to apply for a piece of land to be designated a village green if it has been used “as of right” for lawful leisure purposes for 20 years or more. Designation gives powerful protections against new development on the land and is being used by campaigners to this end.

   Helredale field, Whitby, was part of a 14 hectare parcel of land bought for housing in 1951. The housing was built and the council “laid out and maintained the Field as ‘recreation grounds’ pursuant to [what is now Section 12(1)(b) of the 1985 Housing Act: see materials below]”. This act allows a local authority to “provide and maintain in connection with housing accommodation provided by them under this Part … recreation grounds”.

   The council did so, marking out a football field, mowing grass and maintaining a path. It intended the field for use by those living in the flats – but others used it too, with no attempt by the council to bar them by gates or otherwise.

   To make a claim under Section 15 those others (ie not the estate residents) would have had to have been using the land “as of right” but not with specific permission, thus: “nec vi, nec clam, nec precario; not by force, nor stealth, nor the licence of the owner” – precario meaning a permission that can be easily withdrawn.

   Lord Neuberger, President of the Supreme Court, defined the words “as of right” as

“somewhat counterintuitively, almost the converse of ‘of right’ or ‘by right’. Thus, if a person uses privately owned land ‘of right’ or ‘by right’, the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is ‘as of right’, it is without the permission of the landowner, and therefore is not ‘of right’ or ‘by right’, but is actually carried on as if it were by right – hence ‘as of right’. The significance of the little word ‘as’ is therefore crucial, and renders the expression ‘as of right’ effectively the antithesis of ‘of right’ or ‘by right’.”

   So the Supreme Court in Barkas decided that there was, in effect, a licence for people in general (not just those in the nearby flats) to use the land. It had been established in 1948 by Denning J (HE Green and Sons v Minister of Health (No 2)) that under the equivalent Act of that time (regarding the buying of land by local authorities) “the use could also validly extend to other members of the public”. It followed that those using the field, although it was not provided for them, were using it “of right” ie by right not as if by right, with no actual permission. They were not trespassers so no rights under the Commons Act were gained after 20 years to claim the field as a village green.

   Neuberger’s logic is faultless once he has established the definition of “as of right”. He notes:

“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 [ie making us of it] ‘as of right’ can arise.”

Beresford v Sunderland
The “of right” and “as of right” distinction is not new and was fully examined in Beresford – though with a rather different definition applied to the words “as of right”. Additionally, the facts of the case in Beresford were also different from those in Barkas – such that the Court of Appeal and the Supreme Court were able to distinguish Barkas (ie declared it should have a different outcome because of its different facts) – which is generally how courts should treat precedents if they wish to depart from them. Neuberger accepted as much: “The facts of the present case are very different” he said (para 46) and added: “I am clearly of the view, therefore, that Beresford can, and ought to, be distinguished” – just as the Court of Appeal had done earlier.

   Indeed the obiter (non-binding) comments in Beresford fortuitously fitted the bill regarding the the different facts of Barkas rather neatly, which is why Neuberger and Co adopted them – and which they had a perfect right to do while leaving the substantive judgment in Beresford alone.

The facts and issues in Beresford
The owners (various public bodies) in Beresford had laid grass on a piece of land in 1975 since when it was informally used for leisure; the owners mowed it, put in benches and laid a cricket wicket. Users of the land made a claim for village green status arguing it had been used for “lawful recreation” for at least 20 years (the “prescription” period at the time and adopted by the later Commons Act) but Sunderland council said there had always been an implied licence for people to do that. Such a licence should be implied from the owners’ providing seating and mowing the grass to make it amenable for recreation. People were using it by right, not as of right.

   The judges in the House of Lords disagreed. The land in the Beresford case was bought under wider powers than the 1985 Housing Act – instead under the New Towns Act 1965. “The Washington Development Corporation did not acquire this particular area of land for any specific purpose, and was not under an obligation to appropriate it for any specific purpose,” said Lord Walker (at para 89). There were proposals for a sports centre but meanwhile use of the land was tolerated but not “enjoyed by any overt licence”. In the 1990s Sunderland council gained the land with a view to development. “In short there is no evidence of any formal appropriation of the land as recreational open space by the city council or its predecessors,” said Walker (para 90). Unlike in Barkas.

   Walker argues that use can be tolerated and not adverse to the owner’s interests (ie the user isn’t necessarily a trespasser) yet not actually be licensed. He was describing a legal paradox – usually trespass is adverse to the owner but in cases like this the user would not be looking over his or her shoulder worrying about an owner seeking to turf him off the land or waving a writ at him. This is a different definition of “as of right” from Neuberger’s simplistic version. Walker understood it was a paradox but intended it to exist conceptually as such and hence to exist in law. “As of right” meant as a trespasser who did not consider himself a trespasser nor was considered as such by the owner – yet at the same time did not have either implied or overt permission to use the land.

   Lord Bingham, in his Beresford judgment, agreed, saying a licence (“precario”) could not be implied simply by the council having mown its own land or put in benches as a service to council tax payers. He said:

“If the land were registered as a town or village green, so enabling the public to resort to it in exercise of a legal right and without the need for any licence, one would expect the council to mow the grass and provide some facilities for those so resorting, thus encouraging public use of this valuable local amenity. It is hard to see how the self-same conduct can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council’s licence.”

 This is complicated. Basically Bingham is saying that if the land had already become a village green, one might expect the council to mow it; so if it is not yet a village green, mowing it cannot be interpreted as suggesting the people were potentially trespassers but for an implied licence to use the land.

   The locals were simply using the land as a village green even though it wasn’t one officially; and the council was simply providing a service to those people, not asserting a legal right to exclude them at some later point. The relevant statutes did not confer a right on the locals to use the land for recreation – so it follows they were doing it “as of right” – as if they had the right but with no legal authority.

Sullivan’s view (Barkas in the Court of Appeal)
The Court of Appeal cannot overrule a case like Beresford since it was heard by the higher court, the House of Lords as was (now UK Supreme Court). But it was able to reject Christine Barkas’s claim by distinguishing Beresford. Lord Justice Sullivan at the Court of Appeal said Beresford was authority for the following propositions:

(a) That there is a distinction between a use of land “by right” and a use of land “as of right”. [Neuberger would agree, though not on the definition.]

(b) 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. [Neuberger would agree.]

(c) That section 10 of the 1906 [Open Spaces] Act [see materials below] is an example … of land which is provided by a local authority as open space which the public use for recreational purposes by right.

    The argument in Beresford was that the land was not held by virtue of the 1906 Act so there was no requirement for it to be held on trust for leisure activities – so people using it that way were doing so “as of right” not “by right”. As Douglas Edwards QC for the claimant in Barkas put it in the Court of Appeal: “The public would have ‘an expectation that they were entitled’ to use the land for recreational purposes, and the local authority would expect members of the public to use the land for such purposes. However, these reciprocal ‘expectations’ would not be sufficient to defeat a claim that the use of the land by the public for lawful sports and pastimes was as of right and not by right”. Expectation, it is argued, does not amount to permission or licence – Walker and Bingham’s paradoxical (and perfectly justifiable) point exactly.

   Sullivan noted that he was bound by Beresford but added that “my understanding of the decision is that it turned very much upon the particular facts in that case, and the House of Lords deliberately left open the wider question: when will user [ie use] by the inhabitants of a locality be pursuant to a statutory right to do so and not as of right?” That was the obiter point – which Sullivan adopted, finding against Christine Barkas while distinguishing Beresford and hence leaving it standing.

   The Helredale land had been bought originally for housing and was now wanted for more housing. It was in effect “appropriated for the purpose of public recreation” (unlike the Beresford land) because it was turned over to recreation under the Housing Act 1985 s. 12 after official application to the Secretary of State. People using it for that purpose were therefore using it with permission, by right, not as of right.

   This is in contrast to Beresford, which allows for the possibility that a person using land may not be a trespasser but may not either be using it by right (as a licensee). It suggests that mowing lawns and putting benches up may be an encouragement to use (albeit post hoc) but not a permission for use.

Neuberger and Carnwath view on Barkas (Supreme Court)
On Barkas, Lord Neuberger’s position is straightforward and follows the logic of the obiter comments in Beresford:

“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.”

    To that extent he accepts Barkas can be distinguished from Beresford. He should have stopped there, having fulfilled his duties and rejected the Whitby campaigners’ case and having turned the Beresford obiter comments into firm and binding law. But he decided instead that Beresford should be trashed.

   In part he does this by exposing the flaws in one of the Beresford judgments, that of Lord Scott, saying paragraphs 44-50 should not be relied on. He is right. They are confused, to say the least. But he then goes on to associate the other judges in the case with Scott’s confused reasoning, saying: “I suppose it could be argued that Lord Scott’s opinion represented the view of all five Law Lords.” He is wrong. Most gave their own judgments along the lines of Walker and Bingham.

   Neuberger concludes by agreeing with Lord Carnwath’s assessment of Beresford. Carnwath dismisses the whole set of judgments in Beresford, (except the crucial obiter point) declaring: “I would not only dismiss the present appeal [Barkas], but I would hold that the decision and reasoning of the House of Lords in Beresford should no longer be relied on.” Like Neuberger, Carnwath takes the view that “The ‘as of right’/‘by right’ dichotomy is attractively simple”, ignoring the complexity of the deliberately paradoxical definition set out by Walker and Bingham.

   Instead he asserts: “Where the owner is a public authority, no adverse inference can sensibly be drawn from its failure to ‘warn off’ the users as trespassers, if it has validly and visibly committed the land for public recreation, under powers that have nothing to do with the acquisition of village green rights.” It is an assertion rather than a subtly argued refutation of the Walker/Bingham view. It says, in effect: “I don’t like what their Lordships said and shall simply say the opposite and ignore the fact that they have precedence.”

   He sets out the Beresford reasoning of Smith J in the High Court in 2000 (she had backed Sunderland Council against the claimant, Pamela Beresford) and calls it “unimpeachable in common sense and in law”. In particular he supports Smith’s view that a local authority might be expected to provide leisure facilities, and that’s what Sunderland was doing – and hence inviting people to use them.

   He says: “Unfortunately, by the time the case had reached the House of Lords this simple approach had become obscured.” Which may be so (or not, if one accepts the paradoxical point), but the House of Lords trumps the High Court and in general should be followed.

  On Bingham’s complicated point above (ie “It is hard to see how the self-same conduct [mowing etc] can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council’s licence”), Carnwath says: “I find this hard to follow.” Which it is – but not impossible, and nor is it irrational. He adds:

 “If land in the ownership of a public authority had been validly registered as a village green, it might well be a reasonable inference that acts of maintenance were attributable to that status. But that has no relevance to the position during a period of public use before registration, when there were no village green rights, actual or notional. The explanation for acts of maintenance by the authority during that period has to be found elsewhere. The reasonable inference was not that the public had no rights, but that the land had been committed to their use under other powers.”

 He believes the new town plan of 1973, approved by the relevant government minister, “had the effect of granting planning permission for the development of the land as ‘parkland/open space/playing field’.” That was sufficient “appropriation” of the land for leisure to make the Beresford land a leisure resource as far as the council was concerned – and hence imply permission for people to use it as such. But that was not the actual House of Lords view at the time in Beresford – which should (to ram the point home again) have taken precedence.

Conclusion 
Carnwath puts good arguments – and they were available to the House of Lords for consideration in Beresford. Their Lordships in the earlier case came to the view they did and thereby created the possibility of a situation in which land not purchased pursuant to a particular piece of legislation (eg the 1985 Housing Act) could be used “as of right” for leisure by people who were neither strictly trespassers nor strictly licensees; a situation where the users are not worried that they are acting unlawfully in using the land and the owner is not bothered that they should do so.

   There may be many such patches of land that now, with local authorities under financial pressure, are at risk of being put to more lucrative use. The Supreme Court justices in Barkas could have rejected Christine Barkas’s claim by distinguishing the case from Beresford, as Neuberger acknowledged. Instead they have overruled Beresford and stripped such land of protection by playing fast and loose with legal process and constitutional niceties.

 Twitter: alrich0660

This piece (Government blundering around village greens) explains more about village green applications and the new Conservative/Liberal Coalition legislation intended to curb them.

Head of Legal considers Barkas here 
He notes: “It’s interesting from a technical legal point of view that the [Supreme Court] Justices have chosen … to scrub Beresford from the law books – to do it obiter, outwith their core legal reasoning. That suggests the Supreme Court wants its judgments to be practical and useful in the real world to lawyers and the public – not just technically correct. I don’t think the Court has strictly speaking invoked its power to depart from the precedent set by Beresford, although what it’s said undoubtedly has the same effect.”

He adds:
“I have to admit to a sneaking suspicion that the Supreme Court may not have done full justice to the Law Lords’ reasoning [in Beresford], and I think the shift in attitude from then to now is linked to our law’s increasing tendency – since the growth of the state last century, the development of judicial review since the 1970s and the advent of EU and human rights law – to see issues like this in terms of public law rather than simply private rights. In Beresford, the Law Lords treated the council as an ordinary landowner acquiescing in use of its land; in Barkas, the Justices have seen it as maintaining land in pursuit of its statutory public functions, so giving the public an implied public licence to use it.”

  Note
Carnwath would disagree that the intention of the Commons Act S.15 has been balked by his judgment. He noted in Barkas that it will still apply in cases such as Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 (Trap Grounds case). “Although the land was in public ownership, it had not been laid out or identified in any way for public recreational use, and indeed was largely inaccessible.” Thanks for that, mate.

 Cases
Beresford in the High Court 2000 (Smith J):
http://www.bailii.org/ew/cases/EWHC/Admin/2000/418.html
Beresford in the Court of Appeal 2002 (Dyson LJ et al):
http://www.bailii.org/ew/cases/EWCA/Civ/2001/1218.html
Beresford in the House of Lords 2003 (Walker, Bingham et al):
http://www.bailii.org/uk/cases/UKHL/2003/60.html
Barkas in the High Court (Langstaff J):
http://www.bailii.org/ew/cases/EWHC/Admin/2011/3653.html
Barkas in the Court of Appeal 2012 (Sullivan LJ):
http://www.bailii.org/ew/cases/EWCA/Civ/2012/1373.html

Materials

Neuberger on why he didn’t simply distinguish Beresford
“I was considerably attracted by the notion that, as it was unnecessary to do so in order to dispose of this appeal, we should not positively say that the reasoning in Beresford should no longer be relied on, but should merely express considerable concerns about the decision, and emphasise its very limited scope in the light of the unsatisfactory nature of the arguments which were and were not taken. However, having considered the matter further, and in particular having considered the points made in argument by Lady Hale and the points made by Lord Carnwath in paras 70-86 of his judgment, I am satisfied that this would be unnecessarily cautious. I am quite satisfied that we should grasp the nettle and say that the decision and reasoning in Beresford should no longer be relied on, rather than leaving the law in a state of uncertainty, and requiring money and time to be expended on yet further proceedings.” (Barkas para 48).

Practice Statement 1966 on judicial precedent

Lord Gardiner LC: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.

Commons Act 2006 S.15

15 Registration of greens
(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.

(2) This subsection applies where–

(a) 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; and

(b) they continue to do so at the time of the application.

(3) This subsection applies where–

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the time of the application but after the commencement of this section; and

(c) the application is made within the relevant period.

(3A) In subsection (3), “the relevant period” means—

(a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b);

(b) in the case of an application relating to land in Wales, the period of two years beginning with that cessation.

(4) This subsection applies (subject to subsection (5)) where–

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the commencement of this section; and

(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).

(5) Subsection (4) does not apply in relation to any land where–

(a) planning permission was granted before 23 June 2006 in respect of the land*;

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

(c) the land–

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.

(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.

(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied–

(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and

(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land “as of right”.

*Note: Following the Growth and Infrastructure Act 2013 (Section 16) applications for town and village greens can no longer be made after the local council has officially made public a new planning application or a new local plan or other “trigger events” set out in a new Schedule 1A. Details here in Schedule 4 to the GIA 2013.

 Open Spaces Act 1906, s. 10
Maintenance of open spaces and burial grounds by local authority.

A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest, or control was so acquired—

(a) hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose: and

(b) maintain and keep the open space or burial ground in a good and decent state.

and may inclose it or keep it inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, provide with seats, and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any of them.

Housing Act 1985 s. 12

Provision of shops, recreation grounds, etc.

(1) A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part—

(a) buildings adapted for use as shops,

(b) recreation grounds, and

(c) other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.

(2) The Secretary of State may, in giving his consent, by order apply, with any necessary modifications, any statutory provisions which would have been applicable if the land or buildings had been provided under any enactment giving a local authority powers for the purpose.

(3) The power conferred by subsection (1) may be exercised either by the local housing authority themselves or jointly with another person.

(4) The Secretary of State shall consult the Regulator of Social Housing before deciding whether to consent under this section to anything within the Regulator’s remit.

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