Court of Appeal dismisses application to register playing field as town or village green

The Court of Appeal held that the requirements for the registration of a town or village green had not been fulfilled, specifically in relation to the way the land had been held by Scarborough Borough Council and used by the local resident who brought the case.

Users of land may apply for registration of the land as a town or village green under section 15 of the Commons Act 2006. The requirements are that a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and that they continue to do so at the time of the application.

The land must have been used "as of right" rather than "by right". Land used "as of right" according to case law is used where no force or stealth is involved and where there is no permission from the owner. Land is used "by right", such as in the case of the playing field in this case, if it is appropriated for the purpose of public recreation by the local authority under an express statutory power to provide and maintain it as a recreation ground.

In dismissing the appeal the Court of Appeal rejected an argument by the local resident who brought the case that the public's use of the playing field was 'as of right' because the legislation under which it was provided did not expressly impose a trust over the land, but gave the local authority very wide powers to make the land available.

It was noted that the question of when use by locals of land is to do with a statutory right and not 'as of right' has been left open by the House of Lords. However, the land in question had been appropriated for public recreation by virtue of a statutory power in such a way that made the use of it by right, rather than as of right.