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

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    88.  Those situations would raise difficult issues but in my opinion they do not have to be decided by your Lordships on this appeal, and would be better left for another occasion. The undisputed evidence does not establish, or give grounds for inferring, any statutory trust of the land or any appropriation of the land as recreational open space. Counsel for Sunderland rightly did not argue for some general implied exclusion of local authorities from the scope of section 22 of the Commons Registration Act 1965.

    89.  It is worth summarising the salient points of the evidence.

    (a)  The land was first acquired by the Washington Development Corporation ("WDC") as part of what seems to have been an extensive acquisition under the very wide powers in the New Towns Act 1965. The WDC 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 (such as housing, public buildings, or open space). The plans for the new town provided for the area to be included in a sports complex consisting of an indoor leisure centre and an indoor swimming pool (both of which were built) and a tartan running track (enclosing a football field) and a grandstand (which were not built). Had the track and the grandstand been built, public access to them would no doubt have been regulated in some way (probably including charging an entrance fee). The area would have been devoted to recreation but local inhabitants would not have used it as of right.

    (b)  The ambitious plans for the sports complex have never been fully realised, but they still seem to have been regarded as at least a possibility in 1982 (when a manuscript draft report referred to an unencouraging opinion from the Sports Turf Research Institute) and in 1983 when the City Council, although not yet owners of the land, referred to "the accommodation of a running track" in a report entitled 'Open Space Recreation'. In the meantime recreational use of the area by local inhabitants was tolerated (but not, for reasons which I have already   stated, enjoyed by any overt licence).

    (c)  The land was transferred by the WDC to the Commission for the New Towns ("CNT") in 1989 as part of a   general disposal of WDC's assets. It appears that the CNT retained the land in 1991 (when other assets were transferred to the City Council) because it was regarded as having potential for commercial development (see para 2.4 of the report by the Director of Administration).

    (d)  When the land was eventually transferred by the CNT to the City Council in 1996, its use was restricted by covenant to "the provision of magistrates' courts and/or community health facilities and/or community leisure/recreation and/or other similar community related uses and developments" (see para 2.7 of the same report).

    90.  In short there is no evidence of any formal appropriation of the land as recreational open space by the City Council or its predecessors. Nor is there material from which to infer an appropriation. Such action by the WDC or the CNT would have been unnecessary, and at or after the City Council's acquisition in 1991 an appropriation as open space would have been inconsistent with the site's perceived development potential. It is true that the public's interim use of the land for recreation was not inimical to the City Council's interests. But user can be as of right even though it is not adverse to the landowner's interests.

    91.  That was established by the decision of this House in Cumbernauld [1993] SC (HL) 44, 47-48 where Lord Jauncey said:

    " … senior counsel for the appellants argued that unless a public user of a way was adverse to the interests of the proprietor it must necessarily be ascribed to tolerance and that since the user of [a pedestrian walkway in the middle of a new town] had been positively encouraged by the development corporation, it could not amount to user as of right. For a user to be so considered there must, it was argued, be conflict between the interest of the users and that of the proprietor. For this somewhat stark proposition counsel could produce no authority.

    There is no principle of law which requires that there be conflict between the interest of users and those of a proprietor. As Lord President Normand pointed out in Marquis of Bute v McKirdy & McMillan acquiescence on the part of a proprietor in continued user throughout the prescriptive period without taking steps to assert or record his right of exclusion will result in the constitution of a public right of way against him. If acquiescence in these circumstances produces such a result encouragement can even more readily be said to have the same consequences".

    

 
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