The importance of this provision became apparent as a result of Summingwell [2002]. Prior to that decision, the courts had taken the view the locals using the land had to show that they believed they had a legal right to do so; if they knew they did not own the land, then they could not be held to had that belief. In practice, therefore, any consent or permission from the owner meant that the use could not be ‘as of right’ and thus there were very few successful village green claims. But, in Summingwell, the HL took a fundamentally different approach, holding that there was no need for there to be a belief of legal ownership. Furthermore, the previous rule that there must have been at least one formal sport played on the land was replaced by a recognition that ‘dog walking and playing with children’ could amount to a sufficient use when horses were grazing in a field. As a result of this relaxed interpretation, the scope for ‘town or village green’ registrations was massively increased and many owners of land banks have been faced with registrations by local amenity groups.

We now have further important guidance from the HL. This was in the context of planning permission being granted for a college 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 up to 1,100 people) to watch the sports activities. During that time, the council had regularly cut the grass so its use as a sports area could continue.

After planning permission was granted for a new college, local residents produced their trump card, namely, an application for registration as a ‘town or village green’ under s22(1). The key question then was whether or not use by the public had been with the implicit permission of the LA, and thus was not ‘as of right’.

The HL recognised that there could be an implied licence, which would then make it clear that use of the land was by the implied permission of the LA. But, in its view, an implied licence required a positive act of granting use, as opposed to mere acquiesence in its use. On the facts, there was no act by the LA to show that the inhabitants were only using the land by the LA’s temporary or revocable licence. The actions of the LA were not unequivocal; whilst cutting the grass was the act of any responsible landowner, the provision of seats could be seen as encouragement of the public use.

What was particulary relevant for the HL was that the land was publicly owned. It was the responsibility of the LA to discharge its functions for the benefit of the public; the provision of the benches and the cutting of grass indicated that an LA, with public responsibilities and functions was providing recreational facilities for local inhabitants. Thus, the application for registration succeeded.

Needless to say, this decision will cause grave concern to developers, landowners, and in particular to LAs. As a note in practicallaw.com puts it, ‘the significance that the HL put on the fact that the land was publicly owned will also be of particular concern to LAs and other public bodies. It is likely to be more difficult for such bodies to show that they have given implied permission when trying to defend a claim by local inhabitants. This is likely to make publicly owned open spaces particularly vulnerable to such applications’. See R (on application of Beresford) v City of Sunderland [2003] praticallaw.com A34078. © Practical Lawyer