Residents' use of land was permitted by local authority, so not protected by village green laws, rules Supreme Court

The TVG regime allows land to be registered if it has been used 'as of right' for recreational purposes for at least 20 years. This means that the right has come from the long exercise of that right by the local community, not from a specific permission from the land owner, which is referred to as use 'by right' or 'of right'.

Once registered, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the land or interrupt the public's use or enjoyment of it.

TVG litigation expert Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, said that there was "almost a certain inevitability" about the Supreme Court's judgment in relation to the Helredale playing field in Whitby, North Yorkshire (29-page / 271KB PDF). In its judgment, the Supreme Court upheld the Court of Appeal's earlier ruling that local residents' use of the field over the past 50 years was 'by right' or ' of right', rather than 'as of right'.

"The court's decision in this case was undoubtedly the correct one," Desai said. "The residents in this case had been given a statutory right to use and enjoy the land, which simply doesn't meet the TVG criteria for use 'as of right'."

"Here, the court upheld the separate statutory regime while at the same time underlining that the TVG regime should not be used in a 'mischievous' way, to block future development on land which a local authority has already given the public a right to use. The TVG regime serves an important purpose: if local residents have been using land prescriptively for a very long time then of course they should be entitled to register it as a TVG. However, that was not what happened in this case," he said.

The Helredale field was maintained by Scarborough Borough Council as 'recreation grounds' under the 1985 Housing Act. As part of its duties, the local authority arranged for the grass to be mowed regularly and the marking out of a football pitch. The field had been used as statutory 'recreation grounds' since its acquisition in 1951 by the Council's predecessor local authority.

In October 2007, the Helredale Neighbourhood Council applied to the local authority to register the field as a TVG under the 2006 Commons Act. An inquiry commissioned by the Council concluded that although the land had been used for lawful sports and pastimes by local residents for over 20 years, as required by the statute, this use had not been 'as of right' as their right to do so was set out in the Housing Act scheme. Christine Barkas, a member of the Neighbourhood Council, applied for judicial review of this decision. Her application was unsuccessful, as was a subsequent appeal to the Court of Appeal.

In his leading Supreme Court judgment, Lord Justice Neuberger said that the inclusion of the word "as", in 'as of right', in the TVG legislation was of crucial importance. The legal meaning of the expression was, "somewhat counterintuitively", almost the opposite of 'by right' or 'of right'. 'By right' or 'of right' implied that the use was permitted by the landowner, he said. A combination of statute and previous case law had established a regime under which the enjoyment of the land had to have been for 20 years "not by force, nor stealth, nor licence of the owner" before the right was acquired, he said.

"In the present case, the Council's argument is that it acquired and has always held the field pursuant to ... the 1985 Act and its statutory predecessors, so the field has been held for public recreational purposes; consequently, members of the public have always had the statutory right to use the field for recreational purposes, and, accordingly, there can be no question of any 'inhabitants of the locality' having indulged in 'lawful sports and pastimes' 'as of right', as they have done so 'of right' or 'by right'," he said. "This argument is as compelling as it is simple."

"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. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for 20 years," he said.

The decision came at the end of a "busy week" for the courts in relation to the interpretation of the TVG legislation, Desai said. Last week, the Court of Appeal confirmed that it was theoretically possible for a village green applicant to make an invalid application before the statutory deadline and then make substantial changes to rectify it after the statutory deadline had expired. However, it blocked the applicant in that case's right to register a disused military camp in Hampshire as a TVG because she had been given a "reasonable opportunity" to put her application in order and had not done so in time.

"Despite this, landowners should beware that it was still possible for them to act in such a way as to waive their right to object to the length of time given," Desai said. "The court decided that simply doing nothing, with knowledge of the defect, would not generally constitute a waiver. However, action by the landowner with knowledge of the relevant facts could waive the right to object to extensions of time."

"In order to avoid waiver, landowners certainly should not ignore the errors or cooperate with the application as though they did not exist. Instead, landowners should identify errors in the TVG applications; scrutinise any extensions of time that applicants are given to make corrections to ensure that they are reasonable in the circumstances; make objections to the local authority if they appear unreasonable; and monitor the extent to which the applicant complies with deadlines," he said.