Barkas v North Yorkshire County Council

Transcript date:

Wednesday, July 18, 2012



Court of Appeal

Judgement type:

Permission renewal


Lord Justice Maurice Kay

Transcript file:

Case No: C1/2012/0297 
Neutral Citation Number: [2012] EWCA Civ 1191
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 18th July 2012


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(DAR Transcript of 
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Mr Douglas Edwards QC (instructed by Richard Buxton Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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(As Approved by the Court)

Crown Copyright ©

Lord Justice Maurice Kay:

1. This is a renewed application for permission to appeal, permission having been refused on the papers by Carnwath LJ, as he then was. It is another case arising out of a dispute in relation to an application to register land as a town or village green pursuant to Section 15 of the Commons Act 2006.

2. The applicant made such an application pursuant to the appropriate procedure following objection by Scarborough Borough Council. The County Council referred the case to an Inspector, who held an inquiry which produced a decision adverse to the applicant. She then applied to the Administrative Court and on 20 December 2011 Langstaff J dismissed her application for judicial review.

3. Today Mr Douglas Edwards QC seeks to advance four grounds of appeal. The first is a freestanding ground, which he candidly accepts was not advanced in its present form before Langstaff J. Its foundation is to be found in the words of Section 15, which permits application for registration in circumstances including those where:

"...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..."

That is Section 15(2)(a). The crucial words are "as of right". The submission is that when Langstaff J found that the indulgence in lawful sports and pastimes was "by right" he was wrong in law, because in truth the indulgence had been merely "as of right". That raises the familiar test of nec vi, nec clam, nec precario.

4. Mr Edwards advises that this provision has caused some contention in the specialist field and he has shown me decisions of inspectors which adopt the approach for which he contends as well as the approach which commended itself to the Inspector in this case. He submits that it is an important matter which at the very least merits the clarification of this court in the light of the differential conclusion reached by inspectors.

5. The Inspector in the present case reached his conclusion on this aspect of the case at paragraph 124. He sought to support that conclusion that the users had been acting by legal right and not merely "as of right" by reference to the obiter comments of Lord Walker at paragraph 87 of Beresford v Sunderland City Council [2004] 1 AC 889. The passage is undoubtedly obiter. The Inspector confined his reference to it to paragraph 87. Mr Edwards points out that in the very next sentence at the beginning of paragraph 88 Lord Walker said:

"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."

Mr Edwards suggests that this is just such an occasion. He further refers to the subsequent decision of the Supreme Court in Lewis v Redcar and Cleveland Borough Council No.2 [2010] 2 AC 70 which exemplified the traditional test in relation to the use of land "as of right".

6. I am persuaded, at least by reference to the "some other compelling reason" criterion, that permission ought to be granted on this ground. There are difficulties even in the application of the nec vi, nec clam, nec precario test, not least in relation to whether there was, or may have been, an implied permission to members of the public generally. However, as I am granting permission on the "other compelling reason" basis, I do not need to go further into that.

7. Mr Edwards has persuaded me that the fact that this ground was not raised in its present form before Langstaff J ought to block it out now. I agree with him because of its general importance, the conflicting inspectorate decision and the fact that it is a point of pure law.

8. His other proposed grounds of appeal all relate, if not directly then closely, to the legal principle said to derive from the judgment of Denning J in the case of Green & Sons v Minister of Health (No 2) [1948] 1 KB 34. If necessary Mr Edwards seeks to contend that Green was wrongly decided. I am bound to say that in my judgment that is not so, or indeed arguable, and I tend to agree with Carnwath LJ who took the view that the argument advanced by Mr Edwards in this respect was contrary to common sense. Green, it seems to me, is a common sense decision.

9. However, even without going so far as to say that it is wrong, Mr Edwards makes the alternative submission that the point of Green is simply a recognition of the power of local authorities to make available land for the general public. In his second, third and fourth proposed grounds of appeal he seeks to argue that in the present case there was no evidence of an express intention on the part of the Council to make the land so available. In my mind, the difficulty with this submission is to be found in the report of the Inspector.

10. Mr Edwards submits that it does not include a finding of such an intention. However at paragraph 107 the Inspector said:

"I find that access to the field by local people was mostly obtained from one or other of the four public access points described above. These access points were always open."

11. Langstaff J in turn placed reliance on that as evidencing precisely such an intention. Mr Edwards' response is to compare the facts with those in Beresford. No two cases are alike and, for my part, I am satisfied that the Inspector's findings as analysed by Langstaff J embrace sustainable findings of fact which stand in the way of these proposed grounds of appeal having any real prospect of success.

12. Accordingly, in relation to them I do not grant permission to appeal. Mr Edwards has suggested, and I agree, that if the case goes forward on ground 1, as it now will, he should have permission to amend his grounds of appeal so as to focus on that ground as he now articulates it. I grant him that permission but it must be done within seven days. The appeal will be a narrow one; it certainly should not last more than half a day. The court will be a court of three, which may include a High Court judge and should include one or more judges with public law and/or planning experience.

Order: Application granted in part