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R (Beresford) v Sunderland CC [2003] UKHL 60

Factors that influence whether use is under licence or as of right

Facts

The appellant made an application to the respondent to register land as a town green under the provisions of the Commons Registration Act 1965. The land in question had been used freely by members of the public for recreational pastimes for over twenty years. The respondent city council accepted that the land had been used for these purposes and for this period of time, but refused to register the land as a town green on the basis that the members of the public had not been using it ‘as of right’, but rather, had been using it under implied licence from the council. The council argued that the fact that it provided benches for people to sit on and maintained the land by mowing it demonstrated that it was encouraging the use and therefore these actions implied a licence in respect of the public use. Initially the appellant sought judicial review of the council’s decision. When the application for review and subsequent appeal was refused, the appellant appealed to the House of Lords.

Issue

The issue in this circumstance was whether placing benches on and maintaining a piece of land that had been used freely by the public for more than twenty years was sufficient to imply that the land was used under licence rather than ‘as of right’.

Held

It was held that if the land was registered as a town green under the provisions of the 1965 Act, the local council would be under an obligation to maintain it and to provide appropriate amenities. It would be problematic if the same kind of behaviour had the effect of suggesting that the land was being used under licence. There was also nothing to support the council’s argument that the local residents used the land other than as of right. In fact, the council’s express encouragement suggested that the land was used as of right rather than under licence. The appealed was allowed.


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