As is now well known, this provision has been actively used by amenity groups as a means of protecting unused land from development. In the Beresford case, planning permission had been granted for a college to be built on land that had previously been used by the LA as a playing field; since the early 1970s the area had been laid out as a playing field and the council had provided wooden benches for watching the sports activities and had regularly cut the grass. Despite planning permission being granted for a new college, local residents argued that the land was a ‘town or village green’ and that argument was accepted by the HL.

As we have previously noted, the courts have (ever since Sunningwell [1999]) taken an increasingly relaxed view of the wording of s22(1), so that the requirements of ‘locality’, ‘sports and pastimes’ and ‘use as of right’ have all been significantly watered down. As the HL itself said in Beresford, the end result has been to ‘stretch the concept of a town or village green close to, or even beyond, the limits which parliament is likely to have intended’.

It is important to remember that s22(1) does not just apply to public bodies, although the fact that an LA was involved was clearly relevant to the HL’s decision in Beresford. The real point to appreciate is that all property owners with land banks (or potential amenity land) are at risk. As a result many will no doubt be revising what their policy should be. Some, for instance, will respond by excluding all public access to their land, whilst others will consider granting express licenses by erecting clear signs in prominent places. Another alternative is to erect gates which can be locked from time to time to show that land is not used ‘as of right’, or perhaps to exclude public access at certain times (or on certain days) throughout the year. A further possibility, although one that will probably be of limited effect, might be to ensure that there is a declaration in any planning agreement relating to the land that unlimited public access is not to be assumed. The key point, however, is that the landowner must be taking steps to negative any assumption that use by the public is as of right.

From the legal point of view, there are several arguments that could perhaps be raised in the future. Firstly, it is still open to argue that s22(1) is incompatible with HRA 1998 (although, presumably, merely restricting an owner’s use of land is not the same as depriving him of the use of it). Secondly, public bodies might be able to argue that they have been exercising powers under statutes that exclude the provisions of the 1965 Act. Thirdly, there are still arguments about user, fairness and locality (in particular, Sullivan J recently held that a locality must be a ‘sufficiently cohesive entity capable of definition’, and thus a distinct and identifiable community as opposed to an arbitrary area drawn on a plan). Likewise, the wide construction given to ‘sports and pastimes’ would seem vulnerable to attack, as also would the interpretation of ‘a significant number’ (in one case it was found that as few as six local inhabitants could constitute a ‘significant number’).

Whilst there are legal counter-arguments to be raised, the fact of the matter is that the HL has continued its policy of applying s22(1) in situations that parliament is hardly likely to have envisaged. For a commentary on Beresford v Sunderland CC [2003] UK HL 60; see [2004] EG 10 January 84. © Practical Lawyer