R (on the application of Beresford) v Sunderland CC

R (on the application of Beresford) v Sunderland CC [2003] UKHL 60

Property Law – Commons – Town or village green – Registration

Facts:

A new town development created a town plan that identified an open space in the town as a playing field/parkland. For over 20 years, the open space was used for recreational use, was mowed and kept in useable condition. Access was provided to the public. The land was sold to the council and the practice continued. Beresford applied for registration of the land on the ground that it had been used “as of right” under s 22(1) of the Commons Registration Act 1965 (the Act). The council claimed it was a use of right by an implied licence.

Issues:

Whether a claim to use the land “as of right” within the meaning of s 22(1) of the Act was defeated by an implied licence.

Held:

Appeal allowed. The activity of the authority over the last 20 years and more did in no way indicate that the use of the land was revocable at any time due to a licence. The act of mowing the grass and maintaining the area for general public use encouraged the area to be used for recreational purposes, and continued without any break of such use for more than 20 years. No other evidence could reasonably infer that the land was available to be used, the use had been “as of right” within the meaning of s 22(1) of the Act. Thus, the refusing of the application for the land to be registered as a town green would be quashed.