Judgments - Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) Appellant

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    29.  Finally I should refer to section 10 of the Open Spaces Act 1906. Section 10 provides that:

    "A local authority who have acquired any estate or interest in or control over any open space … 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 … 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 … in a good and decent state …"

"open space", as defined in section 20, includes "land … which … is used for purposes of recreation …"

Section 123(2B)(b) of the Local Government Act 1972 enables open space land held under a 1906 Act trust to be disposed of freed from that trust.

    30.  It is, I think, accepted that if the respondent council acquired the Sports Arena "under the 1906 Act", the local inhabitants' use of the land for recreation would have been a use under the trust imposed by section 10 of the Act. The use would have been subject to regulation by the council and would not have been a use "as of right" for the purposes of class c of section 22(1) of the Commons Registration Act 1965. But Mr Petchey accepted that Mr Laurence QC was correct in contending that the Sports Arena had not been acquired "under the [1906] Act" and that section 10 did not, therefore, apply. Here, too, although your Lordships cannot, in view of this concession, conclude that Mr Laurence's contention is wrong, I do not, for myself regard the point as clear. Is it necessary in order for open space land to have been acquired under the Act, for it to be expressly so stated, whether in the deed of transfer or in some council minute? Attorney-General v Poole Corporation [1938] Ch 23 is interesting on this point. The open space land in question had been conveyed to Poole Corporation

    "in fee simple to the intent that the same may for ever hereafter be preserved and used as an open space or as a pleasure or recreation ground for the public use."

There was no express reference in the Conveyance to the 1906 Act but the Court of Appeal thought it plain that the Act applied. Indeed counsel on both sides argued the case on the footing that that was so (see Sir Wilfrid Greene MR, at p 30). It seems to me, therefore, that the 1906 Act should not have been set to one side in the present case simply on the ground that in the documents relating to the transfer to the council no express reference to the 1906 Act can be found. It would be, in my view, an arguable proposition that if the current use of land acquired by a local authority were use for the purposes of recreation and if the land had not been purchased for some other inconsistent use and the local authority had the intention that the land should continue to be used for the purposes of recreation, the provisions of section 10 would apply (c/f counsel's argument in the Poole Corporation case, at p 27). But your Lordships cannot take the argument to a conclusion in the present case.

    31.  The various statutory provisions to which I have referred are, in my opinion, whatever other relevance they may have, relevant as background against which the implications of the recreational use of the Sports Arena made by the local inhabitants from 1977 to, say, 1999 ought to be assessed. The Sports Arena, throughout that period, was, and remains, land in public ownership, held for public purposes, maintained at public expense and used by the public for recreation.

Was the use "as of right" for section 22(1)(c) purposes?

    32.  It is accepted that the Sports Arena has been used for "lawful sports and pastimes", that the level of use has been sufficiently regular to satisfy section 22(1), that the use has been made predominantly by inhabitants of the locality and that this use has continued for more than 20 years. What is in issue is whether the use has been "as of right". To that I must now turn. Before I do so, however, I would like to pay tribute to the council's Director of Administration who prepared an admirably clear report dated 19 April 2000 for the benefit of the special meeting of the council convened to deal with the registration application. I have drawn heavily on the report in describing the history of the Sports Arena and reciting the other facts relevant to this appeal.

    33.  As Lord Hoffmann noted in the Sunningwell case [2001] 1 AC 335 the concept of use as of right— nec vi, nec clam, nec precario— is derived from the law relating to the acquisition by prescription of private easements. Section 2 of the Prescription Act 1832 refers to rights of way or other easements "actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years …" The concept was imported into the law relating to the dedication of land as a public highway. Section 1(1) of the Highways Act 1932 provided that "where a way … upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way …" (see now section 31(1) of the Highways Act 1980, which is in the same terms).

    34.  It is a natural inclination to assume that these expressions, "claiming right thereto" (the 1832 Act), "as of right" (the 1932 Act and the 1980 Act) and "as of right" in the 1965 Act, all of which import the three characteristics, nec vi, nec clam, nec precario, ought to be given the same meaning and effect. The inclination should not, however, be taken too far. There are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous.

    35.  If a private right of way is to be acquired by prescription, by 20 years enjoyment by someone "claiming right thereto", use pursuant to a licence or permission from the owner of the land will usually — not invariably, but usually — be use that does not satisfy the nec precario condition.

    36.  The acquisition of a private easement is the acquisition of a right in rem over land. If such a right is to be granted by a landowner it must be granted by deed and the grant will usually be express. An easement can only be acquired by implied grant if the implication can be derived from the contents of a deed. A conveyance of land, for example, may carry with it the implied grant of easements necessary for the enjoyment of the land. But the conveyance will have been by deed and, accordingly, capable of effecting the grant of an easement. A mere agreement for the grant of an easement cannot by itself grant the easement.

    37.  Where private easements are concerned there are, however, two exceptions to the requirement that the right must be granted by a deed. First, if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the permission to believe he is entitled on a permanent basis to enjoy the right and in that belief he sufficiently alters his position to his detriment, by expenditure of money or otherwise, he may become entitled in equity to the easement by proprietary estoppel (see E R Ives Investment Ltd v High [1967] 2 QB 379). The landowner would not be able to withdraw the permission he had given. 20 years' enjoyment of the equitable right would surely enable the beneficiary of the permission to claim a legal easement under the 1832 Act. In such a case it is easy to regard the enjoyment of the right pursuant to the original permission as enjoyment by a person "claiming right thereto". In such a case the original permission would be the foundation of the claim of right but the enjoyment would not have been precario.

    38.  Second, if an agreement to grant an easement were entered into for good consideration and the consideration were fully paid, the purchaser of the easement would at once become absolutely entitled in equity to the easement and would become entitled at law after 20 years' use. His enjoyment of the easement, although deriving from permission, would not have been precario and, in my opinion, would have been enjoyment by a person "claiming right thereto" (c/f Bridges v Mees [1957] Ch 475, 484-485). It follows that the proposition that use pursuant to permission given by the landowner is always precario and cannot ever be as of right for prescription purposes is not correct.

    39.  The same is true of use of a public way, or a would-be public way, following upon permission given by the landowner. A public right of way is not created by grant. It is created by dedication. The dedication does not have to be by deed and need not even be in writing. It can be evidenced by conduct. An implied permission for the public to use a particular path or track may be no more than a temporary, terminable permission but equally it may indicate an intention to dedicate. An implied permission that sufficiently evidences an intention to dedicate creates the public right of way immediately. 20 years' use by the public is not necessary. But 20 years' use "as of right" following a permission by a landowner that is indicative of an intention to dedicate will produce a deemed intention to dedicate unless the landowner can produce sufficient evidence that he had no such intention (see section 1(1) of the 1932 Act and section 31(1) of the 1980 Act).

    40.  There are differences, too, between public rights of way on the one hand and town or village greens on the other. Public rights of way are created by dedication, express or implied or deemed. Town or village greens on the other hand must owe their existence to one or other of the three origins specified in section 22(1) of the 1965 Act. One of these is the 20 years' use as of right to which I have already referred. Alternatively, a town or village green may be

    "land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality", or

    "land … on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes …"

In short, the origin of a town or village green must be either statute or custom or 20 years' use. Dedication by the landowner is not a means by which a town or village green, as defined, can be created. So acts of an apparently dedicatory character are likely to have a quite different effect in relation to an alleged public right of way than in relation to an alleged town or village green.

    41.  The present case is concerned with implied permission. The installation and maintenance of the double rows of wooden benches round three sides of the Sports Arena and the regular cutting of the grass by the owners of the Sports Arena evidenced a clear enough willingness that the public should resort to the Sport Arena for recreational purposes. Indeed, it can reasonably be said that these acts encouraged the public to do so. Mr Petchey has submitted that since the public resorted to the Sports Arena pursuant to an implied permission from the landowners, their use of it during the 20 year period failed the nec precario requirement and was not "as of right".

    42.  Mr Laurence QC, submitted that although use pursuant to an express permission would negate use "as of right", use pursuant to a permission that was merely to be implied would not do so. Implied permission, he submitted, was to be equated with mere acquiescence or toleration on the part of the landowner. None of these, he submitted, would disqualify the use from being use "as of right". Only an express permission would render the use precario.

    43.  My Lords I believe this rigid distinction between express permission and implied permission to be unacceptable. It is clear enough that merely standing by, with knowledge of the use, and doing nothing about it, ie toleration or acquiescence, is consistent with the use being "as of right". That that is so is accepted by Mr Petchey. But I am unable to accept either that an implied permission is necessarily in the same state as mere acquiescence or toleration or that an implied permission is necessarily inconsistent with the use being as of right. Indeed, I do not, for the reasons I have given, accept that even an express permission is necessarily inconsistent with use as of right.

    44.  Lord Hoffmann in the Sunningwell case [2000] 1 AC 335 made clear that the section 22(1) requirement of 20 years' use as of right did not require the users of the land to give evidence of their personal belief in their right of use. He said, at p 356:

    "A person who believes he has a right to use a footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not."

It is sufficient, therefore, if the use is "apparently as of right". But, of course, if the users do have a personal belief in their right to use the land, so much the better.

    45.  Permission for the public to use land for recreational purposes, or to pass along a path or track, may, depending on the terms of the permission, if it is express, and on the surrounding circumstances, whether or not it is express, indicate to the public that the permission is temporary only, may be withdrawn, and is therefore precatory, or may indicate to the public that their right of use is intended to be permanent. In the case of a path or track, a sufficient indication, express or implied that the right of the public to use the path or track was intended to be permanent would usually constitute a dedication and create a public right of way. The members of the public using the way would be unlikely, not having perused the Halsbury volume dealing with public highways, to know anything about dedication or the manner in which public rights of way can come into existence. They would simply use the way, following the indications that they could do so or following the example of others who were using the way. Their use would at least be "apparently as of right". Their actual state of mind would not matter. The dedicatory nature of the permission that the public could use the path or track would positively support the contention that their user was as of right rather than contradict it.

    46.  Where a town or village green is concerned, however, a sufficient indication, express or implied, that the right of the public to use the land for recreational purposes was intended to be permanent could not itself endow the land with that status. But the quality of the use of the land by the public, following the dedicatory indications in question, would surely be "as of right". It seems to me to be quite unreal to draw a distinction between the quality of use of a path or track by members of the public following an express or implied dedication and the quality of the recreational use by members of the public of a piece of land following permission given by a landowner that, if dedication of land as a town or village green had been possible, would have constituted a dedication. In each case the quality of the use, entirely consistent with the nature of the permission that had been given, would have been "apparently as of right". The only difference would have been that in the case of the public right of way the landowner could not, once the dedication had been accepted by public use, terminate the use, but in the case of the land used for recreational purposes the landowner could, provided the 20 years had not expired, terminate the use. But this difference does not seem to me to bear upon the quality of the use of the land by the public in the meantime.

    47.  Let me try to illustrate the point I am making by examples. If a landowner puts up a notice which says "The public may use this path as a public highway", use by the public thereafter would surely be use as of right. If a landowner puts up a notice which says "The public may use this land for recreational purposes as a village green", use by the public thereafter, until the landowner cancelled the notice and/or excluded the public, would similarly be use as of right. Whether express or implied, permission to use a path over land or to use land for recreational purposes may be of a sufficiently dedicatory character to justify the same conclusion, namely that use by the public thereafter is use "as of right".

    48.  I agree with Mr Petchey that, in the present case, the attitude of the successive owners of the Sports Arena to the public use of the land for recreation was more than mere acquiescence or toleration. There was, I agree, positive encouragement. The provision of the rows of benches was to make more comfortable the watching of the activities of others. The cutting of the grass was in order to enhance the enjoyment of the Sports Arena by those using it. I am receptive to the submission that the successive owners had impliedly consented to the recreational use of the land by the public. The users were, in my opinion, certainly not trespassers. But this does not, in my opinion, answer the question whether the use was "as of right" or "nec precario".

    49.  Was there any sign that the permission was intended to be temporary or revocable? There was none. The fact that the land was publicly owned seems to me highly material. Neither the WDC nor the CNT nor the council were, or are, private landowners. Their respective functions were and are functions to be discharged for the benefit of the public. The provision of benches for the public and the mowing of the grass were, in my opinion, not indicative of a precatory permission but of a public authority, mindful of its public responsibilities and function, desirous of providing recreational facilities to the inhabitants of the locality. In these circumstances there seems to me to have been every reason for the inhabitants of the locality who used the Sports Arena to believe that they had the right to do so on a permanent basis.

    50.  Accordingly, the nature of the implied permission from the landowners that the evidence shows to have been present was not, in my opinion, such as to prevent the use of the Sports Arena by the public from being use "as of right". The positive encouragement to the public to enjoy the recreational facilities of the Sports Arena, constituted, in particular, by the provision of the benches, seems to me not to undermine but rather to reinforce the impression of members of the public that their use was as of right.

    51.  Smith J and the Court of Appeal were, in my respectful opinion, led astray by according the concept of permission and, thus, of implied permission, a rigidity of character and effect that is not justified. They concluded that because use pursuant to permission will sometimes, or often, or usually, be inconsistent with use as of right, it will always be inconsistent with use as of right. The conclusion, my Lords, must in my opinion depend upon the nature of the permission, objectively assessed or construed. To conclude that use pursuant to implied permission is inconsistent with use as of right may in most cases be correct. But the conclusion is an evidentiary one; it is not a rule of law. And in the present case it is not, in my opinion, a correct evidentiary conclusion.

    52.  For these reasons I would, on the basis on which the case has been argued before your Lordships, allow the appeal. I am, however, for reasons which will have appeared, uneasy about this conclusion. Where "open space" land comes into the ownership of a "principal council", I think there to be strong arguments for contending that the statutory scheme under the Local Government Act 1972, whether or not the Open Spaces Act 1906 or section 21(1) of the New Towns Act 1981 are applicable, excludes the operation of section 22(1) of the Commons Registration Act 1965. But these arguments have not been addressed to your Lordships. I think also, as at present advised, that the power of disposal of "open space" land given to principal councils by section 123 of the 1972 Act will trump any "town or village green" status of the land whether or not it is registered. But this, too, if the council wish to take the point, must be decided on another occasion.

LORD RODGER OF EARLSFERRY

My Lords,

    53.  The town of Washington lies within the jurisdiction of the Sunderland City Metropolitan Borough Council ("the council"). From at least 1977 members of the public have used an area near the town centre - referred to as "the Sports Arena" - for recreation. In truth it is just an open, flat area of grass of some 13 acres which the Washington Development Corporation laid out in about 1974. In the Washington New Town Plan 1973 the land was identified as "parkland/open space/playing field". In 1977, around the time of the Queen's Silver Jubilee visit to the ground, the Development Corporation constructed wooden seats along much of the perimeter. A hard-surface cricket pitch was laid out in 1979. For the rest, the public bodies who have owned the land - most recently, the council - have done little except keep the grass cut. Local people have used the ground in their different ways. Toddlers have played there, children of all ages have kicked a ball around or played cricket and other games, a Sunday league football team have used it for their matches. Many have simply treated it as a place to picnic, socialise, take their ease in the sunshine or walk the dog.

    54.  In 1999 the appellant, Mrs Beresford, sought to register the area as a town or village green under the Commons Registration Act 1965 ("the 1965 Act"). In terms of the relevant part of the definition in section 22(1), as it then stood, a town or village green means land on which the inhabitants of any locality have indulged in lawful sports and pastimes "as of right" for not less than 20 years. Having considered a well-reasoned and objective submission by their director of administration, the council, acting as the registration authority, refused Mrs Beresford's application - but only on the ground that, although the land had indeed been used for lawful sports and pastimes for over 20 years, the use had not been "as of right" but by virtue of an implied licence from the owners.

    55.  In R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335 Lord Hoffmann explained in illuminating detail why the words "as of right" are to be interpreted in the same way in section 22(1) of the 1965 Act as in section 5 of the Prescription Act 1832 (as amended) and section 1(1) of the Rights of Way Act 1932. Long before, in Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229, 238, 239 both Lord Davey, impliedly, and Lord Lindley, expressly, had held that these words in the 1832 Act were intended to have the same meaning as the older expression "nec vi, nec clam, nec precario". Lord Hoffmann adopted that interpretation and translated the phrase as "not by force, nor stealth, nor the licence of the owner": [2000] 1 AC 335, 350H. So, if the inhabitants of any locality have engaged in lawful sports and pastimes nec vi nec clam nec precario for at least 20 years, they have engaged in them "as of right" and the land can be registered as a town or village green in terms of the 1965 Act.

    56.  It is not suggested that members of the public used the Sports Arena vi, by force: the owners did not try to stop them and so there was no question of them overcoming any resistance on the owners' part. Equally, the public were not enjoying themselves clam, by stealth: on the contrary, they used the land openly and the owners knew what was going on. The council concluded, however, that the local residents and others enjoying the land had been doing so precario, by virtue of the licence of the owners of the land. Admittedly, there was nothing to show that the owners had given any express permission or licence to the public. But the facts as a whole, and cutting the grass and constructing the seating in particular, showed that the owners had actively encouraged the use of the area for recreation and so had impliedly granted a licence, or given permission, for it to be used in that way. Use of the land by virtue of this licence or permission could not constitute use "as of right" for purposes of section 22(1) of the 1965 Act. Smith J [2001] 1 WLR 1327 dismissed Mrs Beresford's application for certiorari to quash the council's decision, and the Court of Appeal dismissed her appeal: [2001] EWCA 1218; [2002] QB 874.

    57.  In Roman law "precarium" is the name given to a gratuitous grant of enjoyment of land or goods which is revocable at will. The arrangement is informal and is based on the grantor's goodwill, whether more or less enthusiastic. But, however informal, the arrangement does involve a positive act of granting the use of the property, as opposed to mere acquiescence in its use. The name suggests, and the Digest texts indicate, that in Roman law the paradigm case is of a grant in response to a request. The arrangement lasts for only so long as the grantor allows, tamdiu quamdiu is qui concessit patitur: D.43.26.1 pr, Ulpian 1 institutionum. The concept of precarium crops up in different areas of Roman law, but importantly in connexion with interdicts. The praetor protects someone from interference if he has taken possession of land, or begun carrying out work, nec vi nec clam nec precario.

    58.  In de legibus et consuetudinibus Angliae Bracton took over the noun precarium and its congeners from the vocabulary of Roman law and used them in a number of contexts, but always with reference to a gratuitous grant which is revocable at any time at the grantor's pleasure. See, for instance, lib 2 ff 52 and 52b. In lib 4 f 221 Bracton discusses the acquisition of easements by use for some time nec vi nec clam nec precario - the last being, he says, the same as de gratia, of grace. Under reference to the second of these passages, in speaking of the use of a watercourse in Burrows v Lang [1901] 2 Ch 502, 510, Farwell J asked "What is precarious?" and answered his own question: "That which depends, not on right, but on the will of another person." Some years before, in Sturges v Bridgman (1879) 11 Ch D 852, 863, Thesiger LJ had indicated that, if a man "temporarily licenses" his neighbour's enjoyment, that enjoyment is precario in terms of the civil law phrase "nec vi nec clam nec precario". It is important to notice that, in this regard, English law distinguishes between an owner who grants such a temporary licence or permission for an activity and an owner who merely acquiesces in it: Gale on Easements, 17th (ed 2002), para 4-83. Someone who acts with the mere acquiescence of the owner does so nec precario.

 
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