(back to preceding text)

    59.  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owners of the land, that is to say, by virtue of a licence which the owners had granted in their favour and could have withdrawn at any time.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.

    60.  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.

    61.  In these circumstances I would conclude that local people used the land nec precario.

    62.  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.

    63.  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.

    64.  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 [2000] 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.

    65.  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 [1991] 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 [1914] AC 338, 356.

    66.  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.

    67.  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."

    68.  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.

    69.  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

My Lords,

    70.  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".

    71.  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 [2000] 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 ([2001] 1WLR 1327) and in the Court of Appeal ([2002] QB 874).

    72.  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".

    73.  In Gardner v Hodgson's Kingston Brewery Co Ltd [1903] 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".

    74.  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.

    75.  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.

    76.  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 acquiescence—see pp 817-818—but the view expressed by Fry J seems to have prevailed.)

    77.  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.

    78.  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.

    79.  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.

    80.  This point was put very clearly, and to my mind very compellingly, by Dillon LJ in Mills v Silver [1991] 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 [1967] 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".

    81.  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.

    82.  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.

    83.  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.

    84.  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".

    85.  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 [1972] AC 877, especially the speech of Lord Diplock at pp 932-936. For the reasons given by Dillon LJ in Mills v Silver [1991] 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.

    86.  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.

    87.  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.