By right or as of right?

Posted: 25th October 2012

A difference in phraseology which would be lost on most people means that a plea by a group of residents that they are entitled to have their local recreation ground recognised as a ‘town or village green’ has been rejected by the Court of Appeal.

Parkland 2The decision turned on the difference between having occupation of the land in question ‘by right’ as opposed to ‘as of right’.

The Court acknowledged that non-lawyers might view the difference between the two phrases as little more than a ‘semantic quibble’. However, Lord Justice Sullivan said that the distinction was nevertheless a crucial one and the Court was bound to reject arguments that the recreation ground should be registered as a town or village green and protected from development under the terms of the Commons Act 2006.

The Court accepted that there was no dispute that had local people been trespassing, or squatting, on Helredale playing fields, in Whitby, North Yorkshire, for 20 years, they would have won their case.

However, dismissing the residents' appeal, Lord Justice Sullivan said that it was ‘very difficult, if not impossible’ to find that local people who pursued lawful sports and pastimes on land provided by the local authority for exactly that purpose could be described as ‘trespassers’.

The playing fields, which have ‘all the appearance of a typical municipal recreation ground’, were acquired by the Whitby Urban District Council in 1951 for construction of workers' houses which had never been built. Scarborough Borough Council had since then maintained the land for public recreation and had never made any attempt to exclude the public from lawfully using it.

Ruling that residents had used the fields ‘by right’, and thus could not benefit from the terms of the act, the judge observed: ‘Unlike a private landowner, the council may not lawfully close a recreation ground, or prevents members of the public from using it for recreation, on a whim’.