LAND

Town or village green - land in public ownership used for more than 20 years for sport and recreation - not registrable because user not as of right but by implied licenceR (Beresford) v Sunderland City Council: CA (Lords Justice Latham and Dyson and Mr Justice Wilson): 26 July 2001Inhabitants of a new town used a piece of land, owned by a development corporation and subsequently transferred to the council, for sport and recreation activities for over 20 years without any objection on behalf of the council or its predecessors, which regularly maintained the land at its expenses.The inhabitants applied under sections 13 and 22(1) of the Commons Registration Act 1965 for registration of the land as a town or village green, but the council's licensing committee refused the application on the ground that it and its predecessor owners had given an implied licence to the inhabitants, and the user was therefore not as of right.

Mr Justice Smith [2001] 1 WLR 1327 refused the applicant judicial review of that decision.

The applicant appealed.Sheila Cameron QC and Douglas Edwards (instructed by Southern Stewart & Walker, South Shields) for the applicant.

Philip Petchey (instructed by Director of Administration, Sunderland City Council, Sunderland) for the council.Held, dismissing the appeal, that notwithstanding the absence of the landowner's positive act of objections or a written or oral grant of licence to the inhabitants, in principle there was no reason why the owner's permission could not be inferred from the owner's other acts to defeat a prescriptive claim based on use of land as of right for more than 20 years; and that, since the evidence showed that the property had been maintained with the perimeter seating on the land by the owner as a recreational area for use by the public for recreation, the conclusion of the licensing committee that user was by an implied licence correct.

(WLR)