Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) Appellant
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant)
THURSDAY 13 NOVEMBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant)
 UKHL 60
LORD BINGHAM OF CORNHILL
- The issue in this appeal is whether the Sunderland City Council erred in law in refusing to register as a "town or village green" under the Commons Registration Act 1965 an area of land known as the Sports Arena ("the land") close to the town centre of Washington, Tyne and Wear. I am indebted to my noble and learned friends Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe for their summaries of the relevant facts and the history of these proceedings, which I gratefully adopt and need not repeat.
- As defined in section 22 of the 1965 Act, before its amendment by section 98 of the Countryside and Rights of Way Act 2000, the expression "town or village green" means (for present purposes):
on which the inhabitants of any locality have
indulged in [lawful] sports and pastimes as of right for not less than twenty years."
As Pill LJ rightly pointed out in R v Suffolk County Council, Ex p Steed (1996) 75 P & CR 102, 111:
"it is no trivial matter for a landowner to have land, whether in public or private ownership, registered as a town green . . .".
It is accordingly necessary that all ingredients of this definition should be met before land is registered, and decision-makers must consider carefully whether the land in question has been used by the inhabitants of a locality for indulgence in what are properly to be regarded as lawful sports and pastimes and whether the temporal limit of 20 years' indulgence or more is met. These ingredients of the definition can give rise to contentious and difficult questions. But they do not do so in this case. The only difference between the parties, on which the appeal turns, is whether the admitted use of the land by the inhabitants of the locality for indulgence in lawful sports and pastimes for not less than 20 years was "as of right".
- In this context it is plain that "as of right" does not require that the inhabitants should have a legal right since in this, as in other cases of prescription, the question is whether a party who lacks a legal right has acquired one by user for a stipulated period. It is also plain that "as of right" does not require that the inhabitants should believe themselves to have a legal right: the House so held in R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335, 354, 356. It is clear law, as summarised in the last-mentioned decision, that for prescription purposes under the Prescription Act 1832, the Rights of Way Act 1932 and the 1965 Act "as of right" means nec vi, nec clam, nec precario, that is, "not by force, nor stealth, nor the licence of the owner": see pp 350, 351, 353-354. In this case there was no question of force or stealth. So the only question is whether the inhabitants' user was by the licence of the owner.
- It was not suggested that the council had expressly licensed the inhabitants' use of the land, either in writing or orally. The argument was accordingly directed to whether it was ever possible to imply a licence by a landowner to use land in the manner prescribed by the statute and, if so, whether the facts here could properly be held to give rise to such an implication.
- I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.
- Authority, however, establishes that a licence to use land cannot be implied from mere inaction of a landowner with knowledge of the use to which his land is being put. In Davies v Du Paver  1 QB 184 , which concerned a private right, Morris LJ said, at p 210:
"Before Mr Davies could establish a claim based on prescription the evidence would have to show that the owner of the servient tenement had knowledge of what was happening, or as an ordinary owner must be taken to have had reasonable opportunity of knowledge, and that, having power to prevent it, he did not intervene."
In Mills v Silver  Ch 271, which also concerned a private right, Dillon LJ acknowledged, at pp 279-280, that
"it would be easy to say
that there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement in the particular manner for the appropriate number of years has been tolerated without objection by the servient owner. But there cannot be any such principle of law because it is, with rights of way, fundamentally inconsistent with the whole notion of acquisition of rights by prescription. It is difficult to see how, if there is such a principle, there could ever be a prescriptive right of way."
At p 281 Dillon LJ added:
"It is to be noted that a prescriptive right arises where there has been user as of right in which the servient owner has, with the requisite degree of knowledge
acquiesced. Therefore mere acquiescence in or tolerance of the user by the servient owner cannot prevent the user being as of right for purposes of prescription."
Parker LJ, at p 290, was of the same opinion:
"The true approach is to determine the character of the acts of user or enjoyment relied on. If they are sufficient to amount to an assertion of a continuous right, continue for the requisite period, are actually or presumptively known to the owner of the servient tenement and such owner does nothing that is sufficient
I add only this, that any statement that the enjoyment must be against the will of the servient owner cannot mean more than 'without objection by the servient owner'. If it did, a claimant would have to prove that the right was contested and thereby defeat his own claim."
In R v Oxfordshire County Council, Ex p Sunningwell District Council  1 AC 335 it was held by the House that the landowner's toleration of the local inhabitants' user of the land in question was not inconsistent with such user having been as of right, and so did not prevent registration of the land in question as a town or village green. As my noble and learned friends Lord Rodger and Lord Walker point out, some caution is required of English lawyers reading the Scottish authorities, since the applicable legislation is not the same and "tolerance" is used to mean not acquiescence but permission. It does however appear that the Scots approach to prescription, as applied to public rights of way, is close to the English. As the Lord President (Hope) put it in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035, 1041, in a passage expressly approved by the House of Lords (1993 SC (HL) 44, 47),
where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right."
- Recognising that the authorities preclude reliance on mere inaction as giving rise to an implied licence to use the land, the council has placed reliance on its conduct in mowing the grass on the land and providing benches for the accommodation of spectators and other users of it. This, it was said, showed that the council was encouraging the public to use the land, from which its licence to do so could be implied. Both the mowing of the grass and the provision of benches are open to more than one explanation. But the argument is in my opinion open to a more fundamental objection. As already pointed out, the 1965 Act drew heavily on principles established under the Acts of 1832 and 1932, relating to private and public rights of way respectively, and in neither of these instances could acts of encouragement by the servient owner be relied on to contend that the user by the dominant owner had not been as of right. Such conduct would indeed strengthen the hand of the dominant owner. Here the conduct is in any event equivocal: if the land were registered as a town or village green, so enabling the public to resort to it in exercise of a legal right and without the need for any licence, one would expect the council to mow the grass and provide some facilities for those so resorting, thus encouraging public use of this valuable local amenity. It is hard to see how the self-same conduct can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council's licence.
- In the decision under challenge, the council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been as of right. In her clear and helpful judgment ( 1 WLR 1327) Janet Smith J accepted that conclusion (pp 1340-1341). For reasons given by Dyson LJ with which Latham LJ and Wilson J agreed ( QB 874;  EWCA Civ 1218), the Court of Appeal was of the same opinion (pp 884-886). It is at this point that I respectfully differ from both the lower courts. Qualifying user having been found, there was nothing in the material before the council to support the conclusion that such user had been otherwise than as of right within the meaning of section 22 of the 1965 Act.
- The foregoing paragraphs of this opinion are directed to the issue which was contested before the lower courts and debated between the parties on the hearing of this appeal. After the House had reserved judgment at the conclusion of oral argument, however, the House became concerned to explore the possibility that, on the special facts of this case, the inhabitants of the locality might have indulged in lawful sports and pastimes for the qualifying period of 20 years or more not "as of right" but pursuant to a statutory right to do so. Such use would be inconsistent with use as of right. Counsel were invited to make written submissions on the point, which had not been raised or investigated below, and the House heard further oral argument on it. The House is grateful to counsel for responding so fully to its invitation, and consideration has been given to every statutory provision which appeared to be potentially relevant. In the event, I do not find it necessary to review these provisions in detail since it is to my mind clear that none of them, on the facts found or agreed, can be relied on to confer on the local inhabitants a legal right to use the land for indulgence in lawful sports and pastimes. Indeed Mr Petchey for the council, who had not himself sought to raise this contention earlier, found it hard to argue otherwise.
- For these reasons and those given by my noble and learned friends Lord Scott, Lord Rodger and Lord Walker, I would allow this appeal and make the order which Lord Scott proposes.
- I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Walker of Gestingthorpe, and for the reasons which he gives, and also for the reasons given by my noble and learned friends, Lord Bingham of Cornhill and Lord Rodger of Earlsferry, I too would allow this appeal.
LORD SCOTT OF FOSCOTE
- The issue in this case is whether the use by the local inhabitants of a piece of land, commonly known as the Sports Arena, at Washington, Tyne and Wear, has turned that land into a "town or village green", as defined by section 22(1) of the Commons Registration Act 1965. Section 22(1) defines "town or village green" as including
on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years."
- Three years ago your Lordships had to consider the same issue. The case was R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335. It was the first time your Lordships had had to consider the section 22(1) definition. The present case is the second time.
- The main issue in the Sunningwell case was whether the inhabitants, whose use of the land for sports and pastimes was relied on as constituting the requisite use "as of right", had to use the land in the belief that they had the right to do so. The House held that they did not have to have a personal belief in their right to use the land. It was sufficient that their use of the land, objectively evaluated, appeared to be a use as of right. The issue that arises in the present case is different. The issue is whether a use that is tolerated, and indeed encouraged, by the landowner, can nonetheless be a use "as of right" for the purposes of section 22(1). The issue is complicated in the present case by the circumstance that the successive owners of the Sports Arena during the period over which the use relied on has taken place have been public authorities, holding the land for public purposes and whose tenure of the land has been subject to various statutory provisions whose relevance and effect I must later consider. Nonetheless, the core issue is whether the use relied on has been use "as of right".
- The leading opinion in the Sunningwell case was given by my noble and learned friend, Lord Hoffmann. Each of the other members of the Appellate Committee agreed with his opinion. It contains a valuable and scholarly exposition of the historical provenance of the expression "as of right" in the 1965 Act that is as pertinent to this case as to Sunningwell. I cannot improve upon and need not repeat what Lord Hoffmann has said (see pp 349-355).
- It is accepted that
the words 'as of right' import the absence of any of the three characteristics of compulsion, secrecy or licence 'nec vi, nec clam, nec precario', phraseology borrowed from the law of easements
"(per Scott LJ in Jones v Bates  2 All ER 237, 245 cited by Lord Hoffmann at  1 AC 335, 355).
The issue in the present case is whether the use by the inhabitants was "nec precario". Was there an implied permission given by the landlord? If so, is use pursuant to an implied permission fatal to the contention that the inhabitants' use was "as of right"? How, if at all, does the fact that the Sports Arena was, throughout the period of use, public land held by public authorities for public purposes bear upon the answer to the question whether the use was "as of right". These questions raise some difficult issues. But let me start with the facts.
- The Sports Arena is a grass arena of 10 acres or thereabouts. It was acquired by Washington Development Corporation (the "WDC") in the course of its development of Washington New Town pursuant to the New Towns Act 1965. The WDC's Washington New Town Plan 1973 identified the land as "parkland/open space/playing field". In 1974 the WDC, using excavated soil from the development of a shopping centre, laid out and grassed over the area. It would thereby have become recognisable as what is now the Sports Arena. It has never been fenced and it seems likely that public use of it for the purpose of recreation began shortly after the grassing over. In this litigation, however, the public recreational use contended for, and established by the evidence, is a use from 1977.
- In 1977 the WDC installed a double row of wooden benches, sufficient to accommodate 1100 people, around the north, west and south perimeters of the Sports Arena. This was done in order to provide seating for the public on the occasion of a Royal visit. A non-turf cricket wicket was laid down in 1979. And over the years the Sports Arena has been used for various recreational activities, ranging from team games to the walking of dogs.
- Title to the Sports Arena was, in 1989, transferred by the WDC to the Commission for the New Towns ("the CNT") and, in 1996, was transferred by the CNT to the Sunderland Council. Throughout the period since the Sports Arena was grassed over in 1974, the owners for the time being, first the WDC, then the CNT and, since 1996, the council, have mowed the grass in the summer.
- On 24 December 1998 the council granted planning permission for the erection of a college of further education on land which includes the Sports Arena. It is common ground that the council wants to dispose of the land for use for that purpose. This proposal has been opposed by a number of local residents who have been accustomed to use the Sports Arena for recreational activities and who want to go on doing so. Their opposition to the grant of planning permission having failed, they made an application on 18 November 1999 for the Sports Arena to be registered under the 1965 Act as a town or village green. The 1965 Act requires every "registration authority" to maintain a register of town or village greens (section 3(1)(b)). The registration authority for the area where the Sports Arena is situate is the council (section 2(1)(a)). Section 13 of the 1965 Act enables the register to be amended where any land becomes a town or village green. The applicants' contention is that the Sports Arena has become a town or village green as a result of the requisite use of it by local inhabitants for at least 20 years. The council refused the application. They did so on the ground that the local inhabitants' use of the Sports Arena for recreational purposes had not been "as of right" but pursuant to an implied permission given by the landowners. Therefore, it was said, the use was not "nec precario".
- An application was made by the appellant for judicial review of the council's refusal of the registration application. Smith J  1 WLR 1327 refused the application. She held that the use had been pursuant to an implied permission and that that was sufficient, on the facts of the case, to disqualify the use from being "as of right". She took into account that the land was publicly owned:
"In my judgment, the fact that the land is in public ownership is plainly a relevant matter when one is considering what conclusion a reasonable person would draw from the circumstances of user. It is well known that local authorities do, as part of their normal functions, provide facilities for the use of the public and maintain them also at public expense. It is not part of the normal function of a private landowner to provide facilities for the public on the land. Public ownership of the land is plainly a relevant consideration." (p 1340).
I respectfully agree with these comments.
- The Court of Appeal  QB 874 dismissed the appeal. Dyson LJ, with whose judgment the other two members of the court agreed, held, first, that as a matter of principle a claim that land had been used "as of right" could be defeated by showing that the use had been pursuant to an implied permission and, second, that the council's conclusion that there had been an implied permission was a conclusion the council, on the facts of the case, had been entitled to reach. On the point regarding the public ownership of the Sports Arena, Dyson LJ, while agreeing with Smith J that the public ownership was relevant, expressed the view that
on its own, it was a factor of little weight". (p 885, para 30).
- On the further appeal to your Lordships' House, Mr Laurence QC, who had not appeared below, concentrated on attacking the proposition that use pursuant to an implied licence or permission could ever suffice to defeat a claim that the use was "as of right". An express licence or permission was, he said, essential. Mr Petchey, counsel for the respondent council, contended in answer, that an implied licence would suffice to defeat an "as of right" claim and that the public use of the Sports Arena had been "precario". Neither counsel dealt with the implications of the public ownership of the Sports Arena. This point emerged later and the appeal was, therefore, restored for further written and oral submissions on the point.
The statutory provisions relating to public authority land used for the propose of public recreation
- The New Towns Act 1981 (a consolidating Act) sets out the functions and powers of development corporations such as the WDC and the CNT. Section 21(1) applies to:
"Any land being, or forming part of, a common, open space or fuel or field garden allotment, which has been acquired for the purposes of this Act by a development corporation
"Open space", as defined by section 80(1) of the 1981 Act, includes "
used for purposes of public recreation". Under sub-paragraph (a) of section 21(1), land to which section 21(1) applies may be used by the development corporation "or by any other person, in any manner in accordance with planning permission". This provision demonstrates the breadth of the freedom that development corporations were intended to have in using or dealing with land they had acquired for their statutory purposes. Not only were they themselves free to use the land "in any manner in accordance with planning permission" but so too were any persons to whom they might transfer the land, nb "
or by any other person".
- Part II of the 1981 Act provides for the eventual dissolution of a development corporation and the vesting of its property in the CNT (section 41). The function of the CNT is to "hold, manage and turn to account" the property of development corporations transferred to them under the Act (section 36(1)). The CNT must have regard, inter alia, to the "convenience and welfare of persons residing, working and carrying on business" in the new town (section 36(2)(a)).
- These provisions seem to me to give rise to a number of issues on the facts of the present case. Does section 21 apply to land which was not, when acquired by the development corporation, being used for public recreation but where use for that purpose commenced after its acquisition? Mr Petchey expressly disclaimed, in answer to a question from me, any reliance on section 21(1). In view of that disclaimer your Lordships cannot decide the point on this appeal. But, with respect to counsel, I do not think the answer to the point is plain. The Sports Arena was, at the date when the WDC transferred it to the CNT and at the date when the CNT transferred it to the council, land "used for purposes of public recreation" ie an "open space" as defined. The land had been acquired by the WDC for the purposes of the Act (or its statutory predecessor). So why does section 21(1)(a) not apply and entitle the council to use the land "in any manner in accordance with planning permission?" This question your Lordships must leave unanswered.
- Sections 122 and 123 of the Local Government Act 1972 relate to land which has been acquired by a "principal council". The respondent council is a principal council (see section 270(1)). Section 122(2A) (added by amendment under the Local Government, Planning and Land Act 1980) deals with the power of a principal council to appropriate land of various descriptions including "open space" land to other uses. Section 123(2A) (also added by amendment under the 1980 Act) deals with the power of a principal council to dispose of "open space" land. "Open space" is given the same definition as appears in the 1981 Act, and includes land "used for the purposes of public recreation" (see section 270(1) of the 1972 Act and section 336(1) of the Town and Country Planning Act 1990). The two sections, 122 and 123, prescribe, however, special procedures that a council must follow if the "open space" land is to be appropriated to some other purpose or disposed of (as the case may be). The procedures include advertising the council's intention, allowing time for objections from members of the public and the giving of due consideration to any objections.
- It was, as I understood it, suggested by Mr Laurence that if the "open space" land had achieved the status of a 1965 Act town or village green, then, notwithstanding the disposal of the "open space" land by a principal council, the section 123(2A) procedures having been duly complied with, the land would retain its status as a town or village green under the 1965 Act. Mr Petchey did not contend that this was wrong. Your Lordships do not need to decide the issue on this appeal but, speaking for myself, I regard the proposition as highly dubious. An appropriation to other purposes duly carried out pursuant to section 122 would plainly override any public rights of use of an "open space" that previously had existed. Otherwise the appropriation would be ineffective and the statutory power frustrated. The comparable procedures prescribed by section 123 for a disposal must surely bring about the same overriding effect.
- 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
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.
- 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  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  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.
- 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?
- 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.
- As Lord Hoffmann noted in the Sunningwell case  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).
- 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.
- 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.
- 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.
- 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  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.
- 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  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.
- 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).
- 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
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.
- 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".
- 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.
- 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.
- Lord Hoffmann in the Sunningwell case  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.
- 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.
- 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.
- 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".
- 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".
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- In R v Oxfordshire County Council, Ex p Sunningwell Parish Council  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  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":  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.
- 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  1 WLR 1327 dismissed Mrs Beresford's application for certiorari to quash the council's decision, and the Court of Appeal dismissed her appeal:  EWCA 1218;  QB 874.
- 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.
- 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  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.
- The council were, accordingly, entitled to refuse Mrs Beresford's application for registration of the area as a town or village green only if those who used the Sports Arena did so by the revocable will of the owners of the land, that is to say, by virtue of a licence which the owners had granted in their favour and could have withdrawn at any time. The grant of such a licence to those using the ground must have comprised a positive act by the owners, as opposed to their mere acquiescence in the use being made of the land. Prudent landowners will often indicate expressly, by a notice in appropriate terms or in some other way, when they are licensing or permitting the public to use their land during their pleasure only. But I see no reason in principle why, in an appropriate case, the implied grant of such a revocable licence or permission could not be established by inference from the relevant circumstances.
- In the present case the owners did not expressly license the use of the land by the public. The council rely on two circumstances, however, as justifying the inference that those who used the Sports Arena did so precario, merely by licence from the owners of the land. The first is that the owners cut the grass. But that is at least equally explicable on the basis that the owners were concerned, as many owners would be, for the appearance of such a large and prominent area of open land in the heart of the town. Like charity, care of amenities begins at home. The second matter relied on is the, now rather dilapidated, wooden seating along the perimeter. Whatever may have been its original purpose, the continued existence of the seating is consistent with the owners of the land having acquiesced, perhaps quite happily, in people using the area for football or other games which their friends or relatives would wish, or feel obliged, to watch. To an extent the owners may thus have encouraged these activities. The mere fact that a landowner encourages an activity on his land does not indicate, however, 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.
- In these circumstances I would conclude that local people used the land nec precario.
- 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" in terms of section 22(1) of the 1965 Act. Having considered those submissions, for the reasons given by my noble and learned friend Lord Walker of Gestingthorpe, 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.
- It follows that the local residents and others indulged in their sports and pastimes on the Sports Arena "as of right" in terms of section 22(1). Mrs Beresford is accordingly entitled to have the land registered under the 1965 Act as a town or village green.
- In a memorable passage in Napier's Trs v Morrison (1851) 13 D 1404, 1409, dealing with a public right of way, Lord Cockburn deprecated the citation in the Court of Session of authorities from England. He really wished, he said - taking a swipe at a future Lord President among others - that Scottish counsel and judges:
"could imitate the example set us by the counsel and the judges of that kingdom, who decide their causes by their own rules and customs, without exposing themselves by referring to foreign systems, the very language of which they do not comprehend."
Times change: in the course of the hearing of this appeal well-informed counsel on both sides referred your Lordships to a number of Scottish authorities on the acquisition of servitudes and public rights of way. In Mann v Brodie (1885) 10 App Cas 378, 385-387, Lord Blackburn analysed some of the differences between the English and Scots law on the topic. Lord Hoffmann referred to that discussion in R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335, 352. While exercising all due caution, and at the risk of disturbing the shade of Lord Cockburn, I believe that the Scottish authorities can provide some assistance in this case, at least by way of confirming the conclusion that I have already reached.
- The phrase "nec vi nec clam nec precario", taken over from Roman law, has resounded just as powerfully among Scots lawyers and judges as among their brethren south of the Border. But in reading the Scottish cases a linguistic point must be noted. English judges have tended to use "tolerance" as a synonym for acquiescence. See, for instance, Mills v Silver  Ch 271. Scottish judges, on the other hand, have tended to use "tolerance" as a synonym for permission and as a translation of precarium. This is perfectly understandable since an owner who, perhaps somewhat reluctantly, decides to permit the public to walk across his land until further notice may be said to "tolerate" them doing so. That is what Lord Cockburn has in mind when he says in Napier's Trs v Morrison, 13 D 1404, 1408 that the defenders have possessed the road "by no trespass or tolerance, but as a public road". Similarly, in a different context, in Scottish Property Investment Company Building Society v Horne (1881) 8 R 737, 740 Lord President Inglis says that to warrant the remedy of summary ejection, the defender's possession of premises has to be vicious, ie obtained by fraud or force, or precarious possession. He adds: "A precarious possession is a possession by tolerance merely." It is in this sense that Lord Kinnear, a recognised authority on Scottish land law, uses the phrase "tolerance or permission" in Folkestone Corporation v Brockman  AC 338, 356.
- In Marquis of Bute v M'Kirdy & M'Millan Ltd 1937 SC 93, for some 70 years the public on the Isle of Bute had used a track to pass from a public road to part of the foreshore for purposes of bathing and recreation. The Marquis of Bute, who owned the relevant land, contended that the use of the track by the public should be attributed to the tolerance of himself and his predecessors in title. He therefore sought interdict against a bus company who had been bringing large numbers of trippers to the point on the public road from which they could use the track to get to the beach. Rejecting the pursuer's contention, Lord President Normand held, at pp 119 - 120, that the proper question was whether:
"having regard to the sparseness or density of the population, the user over the prescriptive period was in degree and quality such as might have been expected if the road had been an undisputed right of way. If the public user is of that degree and quality, the proprietor, who fails for the prescriptive period to assert or to put on record his right to exclude the public, must be taken to have remained inactive, not from tolerance, but because the public right could not have been successfully disputed or because he acquiesced in it."
The First Division of the Court of Session, having concluded that the bus company had proved the existence of a public right of way for pedestrians, pronounced decree of absolvitor in their favour.
- In Cumbernauld and Kilsyth Council v Dollar Land (Cumbernauld) Ltd 1992 SC 357 the council raised an action of declarator that a public right of way existed over a raised walkway crossing the centre of Cumbernauld. The walkway, which the defenders had bought along with other properties from the Cumbernauld Development Corporation, was extensively used by the public to get from one part of the town to another. Holding that a public right of way had been established, Lord President Hope observed, at p 368:
"the occasional or irregular use of a path by hill walkers or by others who resort to the countryside can readily be distinguished from the continuous use of it by members of the public as a route from one public place to another. It seems to me to be clear, on an examination of all the later authorities, that a proprietor who allows a way over his land to be used by the public in the way the public would be expected to use it if there was a public right of way cannot claim that that use must be ascribed to tolerance, if he did nothing to limit or regulate that use at any time during the prescriptive period."
In dismissing the appeal to this House from the decision of the First Division, 1993 SC (HL) 44, 47A - D, Lord Jauncey adopted and approved both this passage from the opinion of Lord President Hope and the passage that I have quoted from the opinion of Lord President Normand in Marquis of Bute v M'Kirdy & M'Millan Ltd. Lord Jauncey went on to note, at pp 47H - 48A, that there is no principle of law which requires that there be conflict between the interest of the users of the right of way and those of a proprietor. If acquiescence could lead to a public right of way being established, "encouragement can even more readily be said to have the same consequences."
- Similarly, in the present case, for at least 20 years before Mrs Beresford made her application the inhabitants of Washington had played and passed the time on the Sports Arena in the way they could have been expected to do as of right on a town or village green. Therefore, in the absence of any act on the owners' part to regulate the activities on the land or otherwise to show that the inhabitants were disporting themselves only by the owners' revocable leave or licence, it is proper to infer that the owners had acquiesced in the inhabitants' use of the land as of right. The same result follows if the owners are thought to have encouraged the activities.
- For these reasons, as well as those given by my noble and learned friends Lord Bingham of Cornhill and Lord Walker of Gestingthorpe, I would allow the appeal.
LORD WALKER OF GESTINGTHORPE
- The crucial issue in this appeal turns on the words "as of right" in the definition of "town or village green" in section 22(1) of the Commons Registration Act 1965. I set out the definition with the insertion of paragraph numbers which are not in the Act but are often used as a convenient means of denoting its three limbs:
"[a] Land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years".
- It might be supposed that there is, after the magisterial speech of Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335, little more to be said on the subject. Certainly any consideration of the subject must start with Lord Hoffmann's speech, in which the rest of your Lordships' House concurred. But on the undisputed facts of this case (as to which I gratefully adopt the summary in the speech of my noble and learned friend Lord Scott of Foscote) a new issue has been raised, that of implied licence (or permission, or consent). That was the ground on which the Sunderland City Council succeeded before the judge ( 1WLR 1327) and in the Court of Appeal ( QB 874).
- It has often been pointed out that "as of right" does not mean "of right". It has sometimes been suggested that its meaning is closer to "as if of right" (see for instance Lord Cowie in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035, 1043), approving counsel's formulation). This leads at once to the paradox that a trespasser (so long as he acts peaceably and openly) is in a position to acquire rights by prescription, whereas a licensee, who enters the land with the owner's permission, is unlikely to acquire such rights. Conversely a landowner who puts up a notice stating "Private Land - Keep Out" is in a less strong position, if his notice is ignored by the public, than a landowner whose notice is in friendlier terms: "The public have permission to enter this land on foot for recreation, but this permission may be withdrawn at any time".
- In Gardner v Hodgson's Kingston Brewery Co Ltd  AC 229, 231 the Earl of Halsbury LC referred to the phrase "as of right" used in section 5 (and reflected in section 2) of the Prescription Act 1832, and observed:
"I cannot help thinking there has been a certain play upon words in commenting upon them. In a certain sense a man has a right to enjoy what he has paid for, and, therefore, if the appellant here at any time during the year when she had paid for the right to use this way had been hindered, she would have had a right to complain that what I will call her contract had been broken, and that during the year she had a right to use the way. I do not think that this would have established a right in the proper sense, because, being but a parol licence, it might be withdrawn, and her action would be for damages, but she would have no right to the way. And in no sense could the right be the right contemplated by the Act. That right means a right to exercise the right claimed against the will of the person over whose property it is sought to be exercised. It does not and cannot mean an user enjoyed from time to time at the will and pleasure of the owner of the property over which the user is sought".
- In that case the party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 shillings to the innkeeper. The most likely explanation of this payment was as an acknowledgement of the innkeeper's title, amounting (as it was put by Lord Lindley, at p 239) to:
"a succession of yearly licences not, perhaps, expressed every year, but implied and assumed and paid for".
So to make a charge for entry to land is one way of making clear that entry is not as of right. The paying entrant would be there by licence, even though he would (as Lord Halsbury pointed out) have the right to complain if the landowner broke the terms of his contract.
- An entry charge of this sort can aptly be described as carrying with it an implied licence. The entrant who pays and the man on the gate who takes his money both know what the position is without the latter having to speak any words of permission (although he may qualify the permission by saying that no dogs, or bicycles, or radios are allowed). Similarly (especially in a small village community where people know their neighbours' habits) permission to enter land may be given by a nod or a wave, or by leaving open a gate or even a front door. All these acts could be described as amounting to implied consent, though I would prefer (at the risk of pedantry) to describe them as the expression of consent by non-verbal means. In each instance there is a communication by some overt act which is intended to be understood, and is understood, as permission to do something which would otherwise be an act of trespass.
- The authorities contain many references (which can be identified and understood more readily since Sunningwell) to the importance of looking at the overt conduct of those involved, including what the landowner said and did from time to time during the period which the court has to examine. If the landowner found that his land was being used as a footpath by his neighbour (in a private right of way case) or by the whole village (in a public right of way case) and he suffered in silence, he would be treated as having acquiesced in what was going on. As Fry J (one of the judges who advised the House of Lords in Dalton v Henry Angus & Co (1881) 6 App Cas 740) said in that case, at p 773:
the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest".
(Lord Blackburn took a different view about acquiescencesee pp 817-818but the view expressed by Fry J seems to have prevailed.)
- A landowner who wishes to stop the acquisition of prescriptive rights over his land must not acquiesce and suffer in silence. The Lord President, Lord Hope, put the point clearly in the Inner House in Cumbernauld 1992 SLT 1035, 1041, (that case was concerned with section 3 of the Prescription and Limitation (Scotland) Act 1973, which does not use the phrase "as of right"; but it is common ground that there is still such a requirement under the law of Scotland):
where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right".
Lord Jauncey of Tullichettle quoted that passage with approval when the case came before your Lordships' House on a further appeal 1993 SC (HL) 44, 47; the rest of the House concurred in the speech of Lord Jauncey.
- Later in his judgment in the Inner House Lord Hope said, at p 1042:
"A proprietor who allows a way over his land to be used by the public in the way the public would be expected to use it if there was a public right of way cannot claim that that use must be ascribed to tolerance, if he did nothing to limit or regulate that use at any time during the prescriptive period".
Mr Laurence QC (for the appellants) emphasised Lord Hope's repeated references (in the two passages set out above, and again at page 1042 L) to the need for the landowner to do something.
- Acquiescence, by contrast, denotes passive inactivity. The law sometimes treats acquiescence as equivalent in its effect to actual consent. In particular, acquiescence may lead to a person losing his right to complain of something just as if he had agreed to it beforehand. In this area of the law it would be quite wrong, in my opinion, to treat a landowner's silent passive acquiescence in persons using his land as having the same effect as permission communicated (whether in writing, by spoken words, or by overt and unequivocal conduct) to those persons. To do so would be to reward inactivity; despite his failing to act, and indeed simply by his failure to act, the landowner would change the quality of the use being made of his land from use as of right to use which is (in the sense of the Latin maxim) precarious.
- This point was put very clearly, and to my mind very compellingly, by Dillon LJ in Mills v Silver  Ch 271, 279-80. After referring to what the judge at first instance had said about tolerance Dillon LJ observed:
"The topic of tolerance has bulked fairly large in recent decisions of this court dealing with claims to prescriptive rights, since the decision in Alfred F Beckett Ltd v Lyons  Ch 449. If passages in successive judgments are taken on their own out of context and added together, it would be easy to say, as, with all respect, it seems to me that the judge did in the present case, that there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement in the particular manner for the appropriate number of years has been tolerated without objection by the servient owner. But there cannot be any such principle of law because it is, with rights of way, fundamentally inconsistent with the whole notion of acquisition of rights by prescription. It is difficult to see how, if there is such a principle, there could ever be a prescriptive right of way. It follows that the various passages in the judgments in question cannot be taken on their own out of context. If each case is looked at on its own and regarded as a whole, none lays down any such far-reaching principle".
- Parker and Stocker LJJ both agreed with Dillon LJ, although each added some further reasons. Parker LJ referred to what Lord Halsbury had said in Gardner (in the passage which I have already quoted) and said (at p 289) that by "against the will of the person" Lord Halsbury meant no more than "without the licence of the owner". Stocker LJ stated, at p 293:
"It seems clear from the passage in the judgment cited by Dillon LJ that the judge in the instant case failed to recognise the very limited circumstances in which the word "toleration" has been used in the cases cited which might be summarised as relating to the exercise of a purported right which was casual or trivial or in respect of which some form of consent for the user was established so that acquiescence did not arise".
I respectfully agree with both these observations. Stocker LJ was making the same point as Dillon LJ, that in this context consent is not a synonym for acquiescence, but almost its antithesis: the former negatives user as of right, whereas the latter is an essential ingredient of prescription by user as of right.
- Smith J referred to Mills v Silver although it had not been cited to her. It was cited in the Court of Appeal but was not referred to by Dyson LJ. It was referred to with approval by Lord Hoffmann in Sunningwell. For my part I have found it, after Sunningwell, the most helpful guide to the relevant principles.
- In the Court of Appeal Dyson LJ considered that implied permission could defeat a claim to user as of right, as Smith J had held at first instance. I can agree with that as a general proposition, provided that the permission is implied by (or inferred from) overt conduct of the landowner, such as making a charge for admission, or asserting his title by the occasional closure of the land to all-comers. Such actions have an impact on members of the public and demonstrate that their access to the land, when they do have access, depends on the landowner's permission. But I cannot agree that there was any evidence of overt acts (on the part of the City Council or its predecessors) justifying the conclusion of an implied licence in this case.
- The grounds of the licencing committee's decision, based on the report by the Director of Administration, were as follows:
(a) Members were satisfied that evidence showed the use of the Sports Arena for 'lawful sports and pastimes' by the inhabitants of Washington for a period of at least 20 years prior to the making of the application, the level of use being more than trivial or sporadic. The real issue for consideration was whether there had been permission or a licence to use the site in this way.
(b) Having taken legal advice, members were satisfied that an implied licence would be sufficient to defeat the application, provided that there was sufficient evidence to support the existence of a licence.
(c) Members considered that there was evidence of an implied licence since the site is publicly owned land, specifically laid out as an arena with seating, which is adjacent to the Princess Anne Park and which has been maintained by the council and the Washington Development Corporation before it. Members agreed with the comment in the report that 'it is difficult to conceive that anyone could have imagined that this was other than a recreational area, provided for use by the public for recreation'. The other information contained in section 2 of the report, whilst not in itself conclusive, supported the view that the Sports Arena was intended for public use".
- In my opinion this reasoning, and the fuller reasoning in the director's report which it was based on, must be regarded as erroneous. The fact that the City Council and its predecessors were willing for the land to be used as an area for informal sports and games, and provided some minimal facilities (now decaying) in the form of benches and a single hard cricket pitch, cannot be regarded as overt acts communicating permission to enter. Nor could the regular cutting of the grass, which was a natural action for any responsible landowner. To treat these acts as amounting to an implied licence, permission or consent would involve a fiction, like the fiction under which the placing or maintaining on land of an 'allurement' was regarded as an implied licence which might lead to a straying child being treated as an 'invitee' rather than a trespasser for the purposes of occupiers' liability: see generally Herrington v British Railways Board  AC 877, especially the speech of Lord Diplock at pp 932-936. For the reasons given by Dillon LJ in Mills v Silver  Ch 271, to add the fiction of implied licence to the unavoidable fiction of presumed grant would reduce this part of the law to a state of incoherence.
- I would however add that I feel some sympathy for the view taken by the courts below. The City Council as a local authority is in relation to this land in a different position from a private landowner, however benevolent, who happens to own the site of a traditional village green. The land is held by the City Council, and was held by its predecessors, for public law purposes. A local resident who takes a walk in a park owned by a local authority might indignantly reject any suggestion that he was a trespasser unless he obtained the local authority's consent to enter. He might say that it was the community's park, and that the local authority as its legal owner was (in a loose sense) in the position of a trustee with a duty to let him in. (Indeed that is how Finnemore J put the position in Hall v Beckenham Corporation [1949 ] 1 KB 716, 728, which was concerned with a claim in nuisance against a local authority, the owner of a public park, in which members of the public flew noisy model aircraft). So the notion of an implied statutory licence has its attractions.
- After that approach had been suggested there was a further hearing of this appeal in order to consider the effect of various statutory provisions which were not referred to at the first hearing, including in particular section 10 of the Open Spaces Act 1906, sections 122 and 123 of the Local Government Act 1972 and section 19 of the Local Government (Miscellaneous Provisions) Act 1976. Where land is vested in a local authority on a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers). The position would be the same if there were no statutory trust in the strict sense, but land had been appropriated for the purpose of public recreation.
- 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.
- 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).
- 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.
- That was established by the decision of this House in Cumbernauld  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".
- For these reasons, and for the further reasons set out in the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Rodger of Earlsferry, I would allow this appeal and quash the decision which the City Council took by its licensing committee. I reach this conclusion with mixed feelings. The campaigning group named Washington First may feel that they have won a famous victory, and saved an important public amenity from being built on. That seems to be the likely consequence of this case. But the campaigners have achieved that end by a route which has by-passed normal development controls, and in a way which may be thought to stretch the concept of a town or village green close to, or even beyond, the limits which Parliament is likely to have intended. Any change in the law is of course a matter for Parliament but I respectfully agree with Lord Bingham's observations as to the need for care on the part of decision-makers, whose conclusions as to the existence of a town or village green may have very important practical consequences. I also respectfully agree with Lord Rodger's observations as to the assistance to be derived from the Scottish authorities, provided that note is taken of the different meanings in which "tolerance" has been used in England and Scotland respectively.