Two cases in the last three months have made it more difficult for land to be registered as a town or village green under the Commons Act 2006. S15 of that Act enables the registration of land as a green where local inhabitants have used it for sports and pastimes for a period of 20 years, but only if they can prove the use is “as of right”.
What does “as of right” mean? To use an overly legalistic phrase, it means that the use must be “nec vi, nec clam, nec precario” – or without force, stealth or permission. The former two rarely cause an issue, as the use of land for normal recreation will usually be open and rarely will local inhabitants have had to “break into” the land to use it regularly for such a period. The issue comes with whether or not it has been done without the permission of the landowner.
So in R (Barkas) v (1) North Yorkshire County Council (2) Scarborough Borough Council  UKSC 31, the Supreme Court held that where a local authority had acquired land for a housing development in 1951, and a part of that land had been retained and maintained ever since for recreation purposes, the use was “by right”. In other words, because the local authority had the right to provide the field and maintain it, there was impliedly a licence enabling the public to use it. This mean the use could not be “as of right”.
Again in Richard Naylor v Essex CC and others  EWHC 2560, the piece of land in question was owned privately, but maintained by the District Council (in accordance with its statutory powers to do so) and available for use by the public. It did not matter that the Council did not own the land or have any interest in it, it was made available to the public via an arrangement between the owner and the council, and the landowner had permitted or authorised the council to permit its use. Therefore, the use was “by right” and again the land was not registered.
So, it turns out that the phrases “as of right” and “by right” are opposite in meaning, and mutually exclusive. The Supreme Court in Barkas expressly overturned the previous decision in R (Beresford) v Sunderland, a House of Lords decision from 2003 which inferred that user might be both “by right” but also “as of right”, so that it is now the case that wherever a local authority holds, controls and/or maintains land for the purpose of public recreation pursuant to a statutory power to do so, there will be implied a right for the public to use the land, which means the user cannot be “as of right”.