Supreme Court judgment: R (Barkas) v North Yorkshire

How can you tell whether you’re doing something as of right, or doing it by right? Yesterday the Supreme Court gave judgment addressing that question in a case about Helredale playing field, in Whitby – and has strengthened the hand of councils and developers against local green space campaigners. The question’s a tricky and quite confusing one, and answering it drove the Supreme Court to the fairly uncommon step of disapproving the previous case law of the House of Lords.

The field is owned not by North Yorkshire but by Scarborough Borough Council, which built houses on land around it decades ago. But the field is kept as “recreation grounds” under section 12 of the Housing Act 1985. The council mows the grass occasionally, marks out a football pitch and puts up signs saying dogs should be on leads. Kids play on it and people walk across it. You get the idea. But now the council would like to allow a developer to build on the site.

Local campaigners responded by applying to have the field registered as a town or village green under the Commons Act 2006, the effect of which would have been that, under section 38, nothing could be built on the land without government consent. Section 15 of the Act allows land to be registered if

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

North Yorkshire Council – they’re the ones who had to deal with it – turned the application down on the basis that although people had used the field lawfully for 20 years, they had not done so as of right. Christine Barkas is one of the local campaigners, and the case is her attempt to have that decision quashed on judicial review.

The Supreme Court unanimously agreed with North Yorkshire that people’s use of the field – their “user”, in land law jargon – is not as of right, precisely because they have a right to do so. That will I think seem very strange to most non-lawyers. But as Lord Neuberger, giving the lead judgment, explained (para. 14 of the judgment)

the legal meaning of the expression “as of right” is, 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”.

User as of right must be, as Lord Neuberger explained, nec vi, nec clam, nec precario: without force, stealth or permission. The first two cause no problem, since people openly use the field and can just walk on to it. The council has never objected, or tried to block access to the field. On the contrary, they’ve been happy for it to be used in that way. So does that mean people use it with the council’s permission, or merely its passive acquiescence? If by mere acquiescence, then the field can be register as a “green”. If by permission, then it can’t be.

Lord Neuberger seems to give two answers to this question. At paragraph 21 of the judgment he says

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 … it is, I think, plain that a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land

That I think must be wrong. He’s surely on firmer ground when he says later (para. 23) that

Where land is held [as recreation grounds under the Housing Act 1985], and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct.

I say his first answer (that people have a statutory right to use the land) must be wrong, because if people did have such a right, it’s hard to see how the council could lawfully cut it down unilaterally by, for instance, requiring dogs to be on leads. Yet Lord Neuberger goes on (para. 23) to say

Of course, a local authority would be entitled to place conditions on such use – such as on the times of day the land could be accessed or used, the type of sports which could be played and when and where, and the terms on which children or dogs could come onto the land. Similarly, the local authority would clearly be entitled to withdraw the licence permanently or temporarily.

None of those things seem to me consistent with the idea of a statutory right. Surely the better view is that people use the field under some sort of implied licence to do so, which is where Lord Neuberger ends up. All the other Justices agree with him.

The other interesting aspect of the case is the Justices’ decision to disapprove the 2003 ruling of the House of Lords in R v Sunderland ex parte Beresford, which had unanimously reached the directly opposite conclusion about a piece of land called the “Sports Arena” in Washington (though Lord Scott, to be fair, was clearly uneasy about it). In that case Lord Rodger (para. 60-62) perhaps best sums up their Lordships’ reasoning:

            .. The mere fact that a landowner encourages an activity on his land does not indicate … that it takes place only by virtue of his revocable permission. In brief, neither cutting the grass nor constructing and leaving the seating in place justifies an inference that the owners of the Sports Arena positively granted a licence to local residents and others, who were then to be regarded as using the land by virtue of that licence, which the owners could withdraw at any time.

61. In these circumstances I would conclude that local people used the land nec precario.

62. After the first hearing of the appeal, however, your Lordships invited further written and oral submissions from counsel on whether any of the statutes that may apply to local authority land had conferred on the local residents and others a right to use the Sports Arena – with the result that their use would be “of right”, as opposed to being “as of right” … Having considered those submissions … I am satisfied that, on the agreed facts, neither the designation of the land as “open space” in the New Town Plan nor any of the statutes conferred any such right in this case.

Beresford is no longer good law, of course – since yesterday. There are a couple of things worth saying about how the Supreme Court has dealt with it, though, and how the two judgments differ.

First, Lord Neuberger says at paragraph 47 that he thinks there’s a key factual difference between the situations in the two cases, since in Beresford the land had apparently not been acquired by the council for any particular purpose, and no decision has been made to keep it as recreational space. That leads Lord Neuberger to say

I am clearly of the view, therefore, that Beresford can, and ought to, be distinguished.

What he means here is that Beresford was in any event not a binding precedent that the Supreme Court ought normally to have followed; as a matter of strict legal reasoning its judgment of yesterday did not necessarily involve saying Beresford was wrong. It’s interesting from a technical legal point of view that the Justices have chosen nonetheless 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.

Second, although I’m a great fan of the system whereby our judges can give individual judgments, I must admit that this case shows the value of the Court’s “collegiate” approach, under Lord Neuberger, which means keeping the number of individual judgments down and having Justices agree where possible with one single or lead judgment instead (or in this case, two complementary judgments dealing with separate issues). Yesterday’s judgment is far easier to follow than Beresford, where four Law Lords all set out their own distinct reasoning. The new practice also has weaknesses, but in terms of clear communication with the interested public, this is an improvement.

Finally, the fact that five Law Lords can all have agreed on one solution ten years ago, and that five Supreme Court Justices have all reached the opposite conclusion now, shows how genuinely difficult this issue is. I have to admit to a sneaking suspicion that the Supreme Court may not have done full justice to the Law Lords’ reasoning, 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.

“Public law” was once an alien concept to English lawyers. The great Victorian A.V. Dicey thought it went together with a French view of the rule of law in which your rights are dependent on what the state allows you. Campaigners in Whitby now find that recognition of their special public law right to use a field means that the council can have it built on; so perhaps Dicey had a point.