Village Green Application 614

The Downs, Herne Bay

Comments on the objection from

Canterbury City Council

Introduction ................................................................................................ 2
The status of the land ................................................................................ 2
Title K912449 ............................................................................................. 3
Title K911306 ............................................................................................. 5
Title K901348 ............................................................................................. 6
Title K912167 ............................................................................................. 7
The eastern half of the application site ..................................................... 8
Herne Bay Urban District Council minutes ................................................ 9
Bye laws................................................................................................... 11
The use of language ................................................................................ 13
Chief Commons Commissioner’s decision 1980..................................... 15
How the land is described currently ........................................................ 17
The impact of the 1875 Public Health Act ............................................... 19
The relevance of Beresford ..................................................................... 20
―As of right” .............................................................................................. 22
Summary - the Downs is a legitimate village green ................................ 30
The reason for the council’s objection ..................................................... 34

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 Introduction
1. There is just one objector and one objection to this application. Canterbury City
Council (the council) contends that the land has been held under section 164 of the
Public Health Act 1875 and therefore that the use of the land has been “by right”
rather than “as of right”. To support this claim, the council relies heavily on the House
of Lords judgement in Regina v City of Sunderland ex parte Beresford. The council
says:

2. ―The presence of a legal right to use the land prevents it from being a use ―as
of right". This was explained by the House of Lords in R (Beresford) v
Sunderland City Council [2004] 1 AC 889.‖

3. For the council to succeed in its objection, it must be able to prove firstly that the land
is held under the 1875 Public Health Act and secondly that this means that the land
can not be registered as a village green. The council has done neither.

The status of the land

4. In paragraph 2.11 of its objection, CCC contends that ―It is quite clear that the
application land here has been held by the authority under section 164 Public Health
Act.‖ In paragraph 2.12, CCC contends that ―…there is plenty of evidence that the
council has held the land under section 164 Public Health Act 1875.” However, the
documents that CCC has produced do not support the council’s contention.

5. The easiest way to deal with the documents on which the council seeks to rely is to
look at each parcel of land, starting in the west and working eastwards, and to
examine what each piece of documentation tells us.

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 Title K912449

6. In paragraph 2.15 i) the council says ―The western part of the application site is
largely within title number K912449.‖ This can most kindly be described as a gross
exaggeration. Parcel K912449 stretches from Canterbury Road in the west to a
north/south line just to the west of Hill Top Road. Its overlap with the application site
is small. The very westernmost tip of the application site begins level with Belle Vue
Road, and runs eastwards for just eight house plots before meeting Hill Top Road. A
small triangle of land north of these eight houses and measuring 150m by 140m by
85m falls within both parcel K912449 and the application site. This can in no way be
said to be a large part of the western part of the application site. For context, the
application site measures over two kilometres tip to tip.

7. It is clear from the documents that K912449 was acquired under the Public Health
Act 1875. It is the only piece of land within the application site for which this can be
demonstrated. If the acquisition of land under the 1875 Act is indeed a bar to
registration of that land as a village green (and I will argue below why this is not the
case), then it would follow that this small triangle of land would need to be excluded
from the scope of the village green and I would ask your leave to amend the
boundary of the application site. However, it should also be noted that a small
triangle of land (coloured yellow) lying just south of the promenade and to the east of
K912449 would then fall neither within the scope of K912449 nor within the village
green application site. We would seek to include that triangle within the village green
thus redrawing its western boundary in a roughly north/south line continuing from Hill
Top Road, rather than as we have currently drawn it, along the existing path that
divides mown grass from scrubland.

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8. Before we leave K912449, I would like to draw your attention to the use of language.
In the covenants, the Sanitary Authority undertakes to keep the land in this parcel
―...as a public promenade and Recreation Ground for the use of the Residents in and
Visitors to Herne Bay…‖. I will return to this in paragraphs 46 to 51 below.

9. Finally, the register entry for this parcel of land is very different to all the others for the
rest of the application site in that it commits the council to a number of significant
undertakings about how it will manage and control this land as a Recreation Ground.
This is not repeated in any of the entries for the other parcels of land and serves to
demonstrate that K912449 was acquired in a different way and with different
statutory powers. Put simply, K912449 demonstrates that the council knew how to
acquire land under the 1875 Act and how to record that acquisition. That it did not do
so for any of the other pieces of land must be taken as evidence that it did not
acquire those other parcels under the 1875 Act.

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 Title K911306

10. To the south of K912449 is parcel K911306. This parcel is a narrow strip of land
running alongside and to the north of Beacon Hill. The very eastern end of this strip,
just one house plot wide and measuring approximately 13m by 23m, also falls within
the application site.

11. In the council’s own register of land, under the section headed ―Statutory Powers‖, it
says ―No information. Presumably Public Health Act 1875.‖ There is no date given as
to when someone “presumed” that this parcel of land was held under the 1875 Act.
An anonymous and undated presumption is not evidence of the legal status of a
piece of land, nor does it define it. The purpose of the acquisition is clearly recorded
as an ―Open space for use and enjoyment of the Public.‖ The language here is
important. I will deal with this in paragraphs 46 to 51 below. The council has not
produced evidence that demonstrates that this parcel is actually held under the 1875
Public Health Act.

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 Title K901348

12. Moving eastwards from parcel K911306 we come to K901348. This parcel runs from
a western boundary with K912449 roughly parallel with Hill Top Road to its eastern
edge roughly in line with Sea View Road. In addition, this plot which extends from
Beacon Hill in the south to the high water mark in the north, has a narrow arm or
extension which runs west of Hill Top Road to one house width short of Belle Vue
Road where it meets K911306.

13. In the council’s own register of land, under the section headed ―Statutory Powers‖, it
says ―No information. Presumably Public Health Act 1875.‖ Again, there is no date
given as to when someone “presumed” that this parcel of land was held under the
1875 Act. Again, an anonymous and undated presumption is not evidence of the
legal status of a piece of land, nor does it define it.

14. In the covenants, the council covenants to ―…keep the land …as an open space and
pleasure ground for the recreation and use and enjoyment of the public for ever…‖.
The council seeks to rely on this description to say that this was a formal
appropriation of land under the 1875 Act. I say it is nothing more than the language in
use at the time and will deal with this in paragraphs 46 to 51 below. The council has
not produced evidence that demonstrates that this parcel is actually held under the
1875 Public Health Act.

15. It is with wry amusement that I note that the council now wants to put great store on
the covenants attached to this piece of land. I have previously been told by the
council that the various covenants on this land are irrelevant as they can no longer
be enforced. I am pleased to hear that the council now thinks that they carry weight.

16. There is a strip of land which continues from Sea View Road
north to the shore which falls neither within K901348 nor
K912167. The council is silent about this strip of land.

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 Title K912167

17. Moving eastwards from title K901348 we come to K912167. This parcel runs from its
western boundary parallel with Sea View Road to a curved eastern boundary which
runs just west of Burlington Drive.

18. Again, in the council’s own register of land, under the section headed ―Statutory
Powers‖, it says ―No information. Presumably Public Health Act 1875.‖ Again, there is
no date given as to when someone “presumed” that this parcel of land was held
under the 1875 Act. Again we are invited to believe that an anonymous and undated
presumption possibly decades after the event is evidence of the legal status of a
piece of land.

19. In the covenants, the council covenants to ―…keep the land …as an open space and
pleasure ground for the recreation and use and enjoyment of the public for ever…‖.
Again, I will deal with this in paragraphs 46 to 51 below.

20. In paragraph 2.15 iv) the council asserts that parcel K912167 was decided by the
Chief Commons Commissioner to be held under the Public Health Act 1875. The
only map we have seen of the application site for VG 181 is the one provided by the
council. That shows the application site for VG 181 to have as its eastern boundary
Sea View Road. If that is the case, K912167 falls wholly outside of the application
considered by the Commissioner and the council’s assertion is untrue. The council
has not produced evidence that demonstrates that this parcel is actually held under
the 1875 Public Health Act.

21. There is a piece of land roughly nine house frontages long between the southern
edge of K912167 and The Lees which falls within the application site and about
which the council is silent.

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 The eastern half of the application site
22. In paragraph 2.15 v) the council goes on to deal with ―…the land in the eastern half of
the application site…‖. The council’s contention is that all this land – an area
measuring roughly 1 km by 0.15 km - was acquired by compulsory purchase in 1936.
The only documentation provided by the council is a compulsory purchase order
dated 1935. There is no map. There is no attached schedule. There is no mention of
the title details of the parcels of the land that the council is acquiring by this order.
There is no description of where the land might be sited. There is nothing to say that
this order relates to the land in question. The purchase order is called the Extension
of Sea Front Pleasure Grounds. It does not say which grounds are being extended.
There are Sea Front grounds in the centre of Herne Bay to which this could relate.

23. The order is an authority to purchase land compulsorily. There is no evidence that
the purchase was ever completed.

24. I do not understand why the council has failed to mention K925751, K926058,
K926367, K847057 and K925790. All these parcels of land fall within the eastern half
of the application site, but do not account for all the land in this part of the application
site. The OCE at the Land Registry for K925790 mentions covenants found when
local solicitors were acting for a vendor in 1938. This is hard to reconcile with the fact
that the council claims to have purchased the entirety of this land in 1936.

25. We have seen no evidence that suggests that the council does indeed own all the
land in the eastern half of the application site.

26. The act which gives the council authority for the CPO is the Public Works Facilities
Act. Three other acts are mentioned, none of which are the Public Health Act 1875.
Indeed, there is no authority under the Public Health Act 1875 for a local authority to
acquire land by compulsory purchase for the purpose of providing public walks and
pleasure grounds. If this land were acquired following a compulsory purchase order,
then it follows that it was not acquired under the 1875 Act.

27. We have seen no evidence that, if the council were to prove its ownership, this land
was acquired under the 1875 Public Health Act.

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 Herne Bay Urban District Council minutes
28. In paragraph 2.17 of its objection, the council says ―Furthermore the records of the
minutes of the Herne Bay Urban District Council point to the conveyances of 1901
being for the purposes of buying a pleasure ground for the use of the public.‖

29. The council produces the minutes of 18 th August 1900 which refer to a report to the
council dated 13th August 1900. That report says that Thomas Dence will convey a
parcel of his land to the council on a number of conditions. One of those conditions
was that the land ―…be maintained for ever as a Recreation Ground for the benefit of
the District…‖

30. The council also produces the minutes of the meeting of the HBUDC on 3 rd July 1901
which record the council’s thanks to a number of benefactors for securing ―…to the
use of the Public for ever the large strip of Land and the Leas, extending along the
Sea Front from the East Cliff to the Eastern Boundary of the Parish of Herne Bay,…‖
There is no mention of the Public Health Act 1875, nor any mention of a pleasure
ground. Moreover, at this time the Eastern Boundary of the Parish was Underdown
Road which is in the centre of Herne Bay, some way west of the application site's
western boundary. It is therefore unclear exactly what stretch of land is being
described in this minute.

31. In paragraph 2.18 of its objection, the council says ―There is further reference in the
minutes of July 13 1901 to the various conditions for the transfer including that the
land shall be laid out planted and maintained as a park and pleasure ground for the
use of the public for ever.‖ This is incorrect. The land described in this minute has
nothing to do with the application site, but lies instead between Mickleburgh Hill and
Beltinge Road. It is neither part of the application site nor does it adjoin it at any part.
This minute and the council’s objection based on it are entirely irrelevant.

32. There is further documentation that the council does not mention. The minutes of the
HBUDC of 8th August 1900 record the fact that in 1898 Thomas Dence offered part of
the application site to the council stipulating a number of conditions. His offer was
rejected. By the meeting of 8th August 1900 the matter had arisen again. Around this
time Dence said he would convey his interest in the land ―…to the Council for the
benefit of the town on certain conditions,…‖ At the same time, Ramsey and other
benefactors offered parcels of land if the council would ―…undertake to keep it an
open space for ever.‖ There is no mention of the 1875 Act.

33. On 8th September 1900 the HBUDC discussed meetings that had taken place with
various landowners. Dence agreed to transfer the land for the ―benefit of the district‖
as long as it was kept ―…as an open space for the use of the public for ever…‖
Chalmers agreed to ―…give up the land…for the use of the ratepayers,…‖ Ramsey
agreed to transfer the land on condition that the council ―…undertook to keep it an
open space forever.‖ There is no mention of the 1875 Act.

34. On 2nd March 1901 the conveyances relating to the Russell, Murch and Dence land
were sealed. No mention is made of the 1875 Act.

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35. On 16th March 1901, Walter Furley agreed to some of the land referred to as Beacon
Hill Land being transferred to the council ―…for the use of the public….‖. No mention
is made of the 1875 Act.

36. On 14th August 1901 the council’s surveyor submitted a report about fencing for the
―…land situated between the East Cliff Recreation Ground and Beacon Hill Road.‖ It
is clear from this that the council did not consider this land to be part of the
Recreation Ground. There is no mention of the 1875 Act.

37. No statutes are mentioned. However, we know that the council was aware of its
powers under the 1875 Public Health Act because it used them explicitly when it
registered the recreation ground in 1881, which overlaps to a very small extent with
the application land. Also, there is specific discussion by the council in 1890 of the
Amendment Act. However, when it comes to the acquisition of the application site
land, there is no mention of the 1875 Act or its relevance. No documentation exists to
substantiate the council’s claim over a hundred years after the event that the land
was acquired under the 1875 Act.

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 Bye laws
38. The council submits copies of a number of bye laws to support its case.

39. The first, made in 1906, makes no mention of the 1875 Act, even though this set of
bye laws follows close on the acquisition of many of the parcels of land, and so the
relevant statutory powers would have been at the forefront of the council's mind. In
the schedule which describes the land to which it applies the document talks about
the indentures under which the land is held. It says nothing about holding the land
under the 1875 Act. It is very unlikely that, if the land had been expressly acquired
under the 1875 Act, the council would have failed to capture this in the bye laws.

40. Then there is no documentation for 42 years until we get to the bye laws of February
1948 which refer to ―An Open Space – The Lees to Reculver‖. There is no schedule
attached to this document, although one is referred to in the introduction. At the same
time, bye laws appear for the Downs (to Sea View Road) and the Memorial Park.
Both documents use the powers of the 1875 Act to make bye laws but neither
document suggests that the land itself was acquired under the 1875 Act. My
conclusion is that we have now reached the time when the presumption was made
that this was all 1875 Act land. This presumption was subsequently mistakenly
accepted as fact.

41. The next bye laws are made in 1964 ―with respect to an Open Space‖. Again, this
document uses the powers of the 1875 Act to make bye laws but does not suggest
that the land itself was acquired under the 1875 Act.

42. The next document relates to the seashore and promenade and relates to land north
of and outside the application site.

43. The final document relates to bye laws made in 1969 and relates to the Downs from
East Cliff Hill to Sea View Road. Again, this document uses the powers of the 1875
Act to make bye laws but does not suggest that the land itself was acquired under
the 1875 Act.

44. All these bye laws repeat again and again the fact that they will be made clear on
notice boards, clearly visible in a number of places on the land to which they refer.
There are no such notices anywhere on the application land. There are no rules,
regulations or bye laws publicised on and relating to this land anywhere. If they had
been in place once, these bye laws are no longer visible and many of them are no
longer observed. No action is ever taken against people using this land for any kind
of lawful sport or pastime, even if they are breaking what might long ago have been a
relevant bye law. Dogs run free and catch rabbits. People put up tents and stay in
them. People put up notices about fêtes, sports events and lost pets. People ride
bicycles wherever they wish – there are no special areas set aside for them and they
do not even stay on the few paths. People run, sit and lie on the grass wherever they
like. People sing and play musical instruments. They pick flowers and other plants.
They forage for leaves and berries. They fly kites. They fly hang gliders. In fact, after
the application period, Southern Water established a small shanty town of
portacabins and generators while they undertook six months work on nearby roads.

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 They did not ask the council for permission to do so. There are no areas specifically
set aside for one kind of game or the other – people play what they will where they
will. In short, there are no bye laws in operation on this land.

45. There is nothing in the documentation after March 1969 – a period of more than forty
years to the present day. If this land is really a recreation ground held under the 1875
Act and managed as such (which has yet to be proved), this is surprising. It is much
more likely, as I will argue below, that this land has simply fallen off the council’s
radar and has been allowed to become what it is now, land on which people have for
more than twenty years engaged in whatever kind of lawful leisure activity suits them,
as if they had a right to do so with no rules or bye laws to regulate or limit their
behaviour.

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 The use of language
46. The council claims in 2.15 iii) that a covenant undertaking to ―…keep the land as an
open space and pleasure ground for the recreation and use and enjoyment of the
public for ever….is completely consistent with the land being held under the Public
Health Act 1875.‖ In 2.15 v) the council says that the words ―public walks and
pleasure grounds‖ is ―language drawn from the Public Health Act 1875.‖ It is, of
course, no such thing.

47. Laws tend to reflect the language in common use at the time. The term ―public walks
and pleasure grounds‖ predates the Act by at least thirty years. It is likely that its
origins go back much further. This is clearly demonstrated, for example, by its use in
Punch in 1845 where we see the phrase ―…advocated some large piece of land
being taken, and ornamented, for the sole purpose of public walks and pleasure
grounds.‖ The term was in common usage many years before the 1875 Act came
into existence and therefore its use in some of the documentation put forward by the
council carries no special legal meaning. It can not be said that the term ―public walks
and pleasure grounds‖ when used in a covenant is proof that this was language
drawn from the 1875 Act, when its use is demonstrably so much wider and older than
that.

48. The purpose of the acquisition of K911306 is clearly recorded as ―Open space for
use and enjoyment of the Public.‖ This acquisition predates the 1906 Open Spaces
Act by five years and yet uses (if we are to follow the council’s argument) the
language of that Act. This is another demonstration of the fact that language in
common usage at the time might later look as if it had legal significance, but in fact
had nothing of the sort. There is no mention in this document of either public walks or
pleasure grounds.

49. The purpose of the acquisition of K901348 is clearly recorded as ―Open space for the
use and enjoyment of the public for ever.‖ Again, the language here is important.
Again the acquisition predates the 1906 Open Spaces Act by five years and
demonstrates clearly that language in common usage at the time might later look as
if it had legal significance, but in fact had nothing of the sort. The covenants say the
land is to be kept as an open space and pleasure ground – language which I have
already demonstrated was in common use for at least thirty years before the 1875
Act.

50. Conversely, it is clear from the documents that K912449 was the only piece of land
within the application site which was acquired under the Public Health Act 1875. The
purpose of the acquisition is listed as ―Public promenade and recreation ground for
use of residents and visitors to Herne Bay.‖ The council covenanted to keep the land
―…as a public promenade and Recreation Ground…‖ There is no mention of public
walks. There is no mention of pleasure grounds. The language of the 1875 Act is not
used in this document despite the fact that the document clearly states that the
relevant statutory powers are the Public Health Act 1875. From this we can see that
language was used loosely in all these documents to convey a general meaning
rather than a specific legal status for each piece of land.

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51. As we have seen, use of the words ―public walks and pleasure grounds‖ is no proof
of anything more than the fact that this was language in common use at the time, and
had been so for at least 30 years. Use of the words ―open space‖ in these documents
similarly carries no weight as it predates the 1906 Open Spaces Act and therefore
can not possibly have been said to have been drawn from it. However, it does
demonstrate my point that language in common use (here, the use of the term ―open
space‖) will later be co-opted into relevant laws. However this is not the same as
saying that every instance of a general term is evidence that that term must have
been drawn from a legal Act in which it later appeared.

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 Chief Commons Commissioner’s decision 1980
52. The House of Commons Explanatory Note says that the 2006 Commons Act was
established because the 1965 Commons Registration Act, and its subsequent
application, proved to have deficiencies. The 2006 Act specifically includes
provisions for the creation of new town or village greens, recognising that not all
those that could and should have been registered under the 1965 Act were so
registered. It allows for mistakes to be rectified. There is no assumption that all
previous cases were decided correctly, indeed the 2006 Act exists to remediate
earlier errors and omissions.

53. About a third of the application land was subject to a village green application in
1970. Kent County Council approved the application and registered the land as a
village green. This decision was overturned by the Chief Commons Commissioner in
1980.

54. The Chief Commons Commissioner’s decision is initially confusing because he has
swapped east and west. Moreover, the relevant period of use he was considering
was 1945 to 1965. It appears as if he decided that the use made of the land could not
be ―as of right‖ because he believed it to be held under the 1875 Public Health Act.
He deals with this in one paragraph. We know that K912449 is listed in the council's
terrier as land acquired under the 1875 Act. K912449 accounted for almost half of
VG181. It is clear from our conversations with people involved in the previous
application that very little documentary evidence was produced at the time by the
applicant so we do not know on what other evidence the Commissioner based his
view. However, the fact that almost half the land was demonstrably held under the
1875 Act must have been a big influence on his final decision.

55. Of course, K912449 - the only parcel of land that is explicitly held under the 1875 Act
- accounts for less than 3% of the current application land. I have already
demonstrated above that the evidence produced by the council in its objection to this
application does not support the contention that the other 97% of the application land
is held under the 1875 Act.

56. The Commissioner then raises the question as to whether the acquisition of the land
is an ―allotment‖ under the 1965 Act. This is an interesting question and one that he
does not deal with fully. It raises the possibility that there is another heading under
which the land should properly have been registered as a village green at the time of
the previous application.

57. The vast bulk of the Commissioner’s consideration is given to deciding whether the
inhabitants of the locality had a customary right to use the land for lawful sports and
pastimes. This is not relevant to the current ―as of right‖ application. However,

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 arguably, in the light of R v Oxfordshire County Council And Others Ex Parte
Sunningwell Parish Council, the Commissioner was wrong to insist on use going
back to time immemorial as being the correct test of whether or not a customary right
had been established. More recent decisions are clear that the correct period is 20
years.

58. There are many reasons why it is right to put the previous decision to one side:

59. The 2006 Act was put in place in recognition of the fact that mistakes were
made in previous registration decisions and that some land that should have
been registered was not registered. It also allows for the fact that some land
has become capable of being registered as a village green after the deadline
fell following the 1965 Act
60. The Commissioner was taking his decision based on the 1965 Commons
Registration Act, not the 2006 Commons Act
61. The Commissioner’s decision covers just one third of the current application
site
62. The Commissioner’s decision includes land (most of both K912449 and
K911306) that falls outside the current application site. Almost half of the land
he considers has nothing to do with this application, and was acquired in
different circumstances
63. Since the Commissioner’s decision in 1980 there have been definitive
decisions in the House of Lords as to the meaning of ―as of right‖. The
Commissioner himself offers no insight into his thought process as regards the
―as of right‖ point, yet this is the key point on which the council rests its current
objection. I shall deal with ―as of right‖ below
64. It is a fact of life in matters of law that decisions taken at a lower level are often
overturned at a higher level. Therefore there can be no presumption that the
commissioner’s decision is right and that other decision makers, looking at the
application in the light of recent precedent, would agree with him.

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 How the land is described currently
65. There is no mention of this land in any of the council documents that describe large
pieces of land held as recreational space.

66. The land is not mentioned in the council’s Open Spaces Strategy 2009-14, even
under section 3.1.6 which lists the council’s Herne Bay portfolio. The land is listed in
the open space ward profile as a combination of amenity green space (informal
recreation spaces, green spaces in and around housing, domestic gardens and
village greens) and semi-natural space (woodland, scrub, wasteland, derelict open
land, open water, grassland, cliffs, quarries, pits). It is not listed at all in the council’s
audit of the quality and value of its open spaces, beyond being an implicit (but not
named) part of the green corridor running from Reculver to Seasalter. The land is not
mentioned in the action plan for Open Spaces.

67. The Herne Bay Conservation Area Appraisal describes the land as a ―narrow strip of
open space‖. It also describes it as a ―publicly owned space…the sea-front space[s]
of The Downs,…‖ It describes the land as ―…semi-natural open space penetrating
into the built environment.‖

68. The very detailed Herne Bay Area Action Plan makes no mention of the land, even
under the section dedicated to recreation and leisure. Indeed, the land is outside the
town’s regeneration plans, in recognition of its status as a semi-natural landscape,
bordering the Thanet Coast SSSI.

69. The Downs is not mentioned in the text of the Local Plan. It is shown on the
proposals map simply as Open Space.

70. In the Herne Bay and Whitstable Landscape Appraisal, The Downs is described as
public open space.

71. The Downs is not mentioned in the corporate plan.

72. There is no mention of The Downs on the council’s website either under Outdoor
Sports and Recreation Facilities or under Parks and Gardens.

73. The council’s budget documents demonstrate that the council levies a range of
charges for the use of parks, gardens and open spaces. No charge is ever made for
using The Downs.

74. In summary, the council’s own documentation demonstrates that this land is not a
formal recreational space, but a semi-wild, natural green corridor on the edge of
town, used by local people in any way that they see fit. Nothing has been done to this
land in the last twenty years that substantiates the council’s contention that it holds
this land as a recreational space under the 1875 Public Health Act and that it
manages and maintains it as such. It is fair to say that, apart from the need to
stabilise the land to protect the town from landslips, this land has been completely off
the council’s radar for the relevant twenty year period. Undertaking periodic drainage
and stabilisation works on a strip of land to prevent the cliff top houses from falling

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into the sea is a world away from activities which the casual observer would
understand to be the maintenance of a public recreation ground and pleasure
ground.

Looking west from the eastern tip of the application land

Looking east from The Hundred Steps, roughly in line with Sea View Road
(i.e. about a quarter of the way along the Downs from the eastern end)

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 The impact of the 1875 Public Health Act
75. If you disagree with me and find, despite the lack of evidence, that the land is held
under the 1875 Public Health Act, then the council needs to demonstrate that this is a
bar to the land being registered as a village green. As I said in my introduction, the
council relies heavily on the House of Lords judgement in Regina v City of
Sunderland ex parte Beresford to support this objection. The council says:

76. ―The presence of a legal right to use the land prevents it from being a use 'as
of right". This was explained by the House of Lords in R (Beresford) v
Sunderland City Council [2004] 1 AC 889.‖

77. I disagree. This was not ―explained‖ in Beresford. I shall explore this more fully below.

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 The relevance of Beresford
78. In fact, the issue of whether or not land held under the 1875 Public Health Act can be
registered as a village green was not put to the House of Lords to decide in the
Beresford appeal. The remarks made by Lord Bingham on which the council seeks to
rely are obiter dicta and are therefore neither law nor binding. The Beresford appeal
focussed on whether a use that is tolerated, and indeed encouraged, by the
landowner, can nonetheless be a use "as of right" for the purposes of section 22(1).
The council presents Lord Bingham’s remarks as if they were a binding legal
precedent when it is well known that this particular legal question has yet to be tested
in a court of law.

79. Indeed, in the same judgement, in paragraph 38, Lord Scott takes a different view to
that expressed by Lord Bingham:

80. ―It follows that the proposition that use pursuant to permission given by
the landowner is always precario and cannot ever be as of right for
prescription purposes is not correct.” [my emphasis]

81. Lord Scott goes on to say:

82. ―…I am unable to accept…that an implied permission is necessarily

inconsistent with the use being as of right. Indeed, I do not, for the reasons I
have given, accept that even an express permission is necessarily
inconsistent with use as of right.” [my emphasis]

83. ―Smith J and the Court of Appeal were, in my respectful opinion, led astray
…..They concluded that because use pursuant to permission will sometimes,
or often, or usually, be inconsistent with use as of right, it will always be
inconsistent with use as of right. The conclusion, my Lords, must in my opinion
depend upon the nature of the permission, objectively assessed or
construed. To conclude that use pursuant to implied permission is
inconsistent with use as of right may in most cases be correct. But the
conclusion is an evidentiary one; it is not a rule of law.‖ [my emphasis]

84. Lord Scott also explores whether the 1906 Open Spaces Act might have been
relevant and then concludes: “But your Lordships cannot take the argument to a
conclusion in the present case.‖ [my emphasis]

85. Lord Walker says:

86. ―Those situations [where land is vested in a local authority on a statutory trust]
would raise difficult issues but in my opinion they do not have to be decided
by your Lordships on this appeal, and would be better left for another
occasion. The undisputed evidence does not establish, or give grounds for
inferring, any statutory trust of the land or any appropriation of the land as
recreational open space. Counsel for Sunderland rightly did not argue for
some general implied exclusion of local authorities from the scope of
section 22 of the Commons Registration Act 1965. [my emphasis]

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87. In conclusion, the point that the council is representing as a bar to the Downs being
registered as a village green has never been decided. In addition, there was no
consensus even in the obiter dicta comments of the various judges as to what the
answer might be had the question been put to them. Moreover, nowhere, either in the
2006 Act or in the debates captured in Hansard about the Act, is there any mention
of the impossibility of registering as a village green land which is held under the 1875
Public Health Act. Indeed, for the first time, every landowner, including local
authorities, has been given the right to register land as a village green, regardless of
its status or history. Section 15.8 of the Act provides that:

88. ―The owner of any land may apply to the commons registration authority to
register the land as a town or village green.‖

89. There are many examples of councils registering as a village green land which had
originally been held under either the 1875 Public Health Act or the 1906 Open
Spaces Act. It is clear from this that land with “1875 Act status” is not incompatible
with village green status. The council is wrong to claim that Beresford demonstrates
that ―The presence of a legal right to use the land prevents it from being use ―as of
right‖.

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 “As of right”
90. I will turn now to the meaning of ―as of right‖. The Commons Act says in section 15.2
that land can be registered as a town or village green if:

91. ―(a) a significant number of the inhabitants of any locality, or of any

neighbourhood within a locality, have indulged as of right in lawful sports and
pastimes on the land for a period of at least 20 years; and (b) they continue to
do so at the time of the application.‖

92. In Beresford, Lord Bingham says that it is clear law that ―as of right‖ means nec vi,
nec clam, nec precario, that is, ―not by force, nor stealth, nor the licence of the
owner.‖

93. Also in Beresford, Lord Scott quotes Lord Hoffman and says:

94. ―It is accepted that… ―the words 'as of right' import the absence of any of the
three characteristics of compulsion, secrecy or licence— 'nec vi, nec clam, nec
precario', phraseology borrowed from the law of easements … " (per Scott LJ
in Jones v Bates [1938] 2 All ER 237, 245 cited by Lord Hoffmann at [2000] 1
AC 335, 355).

95. It was established in R v Oxfordshire County Council, ex parte Sunningwell Parish

Council that this phrase had the same meaning as under the Prescription Act 1832
and the Rights of Way Act 1932. ―Precario‖ means precarious or uncertain. In the
Beresford judgement Lord Rodger explained that ―precarium‖ was the Roman term
for ―a gratuitous grant of enjoyment of land or goods which is revocable at will.‖
Lord Rodger quotes Farwell J in Burrows v Lang [1901] and says:

96. ―Farwell J asked "What is precarious?" and answered his own question: "That
which depends, not on right, but on the will of another person." ―

97. The council has not suggested that use of the land in this case has been either by
force or in secrecy. It follows then, that the council’s only objection to local use
having been ―as of right‖ is that the use of the land has been by virtue of the
revocable permission of the landowner.

98. For use of the land to be anything other than "as of right", it must be precario. Use of
the land that is precario is use that depends on the landowner’s permission, and on
permission that can be withdrawn at any time. This is what the council needs to
demonstrate.

99. The land in Beresford was held as ―parkland/open space/playing field‖. It was land in
public ownership, held by a principal council, held for public purposes, maintained at
public expense and used by the public for recreation – i.e. it was an ―open space‖ as
defined by legislation. Lord Scott noted Dyson LJ’s view in the prior Court of Appeal
hearing for Beresford that, while the public ownership of the land was relevant, ―…on
its own, it was a factor of little weight‖. What Lord Scott thought was more important

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 was the parallel between the Commons Registration Act 1965 and the laws relating
to private easements and public rights of way and the way in which people other
than the owner can acquire rights over land which does not belong to them.

100. He said:

101. ―…if permission to enjoy a right, capable of constituting an easement, is

given by the landowner in terms likely to lead, and that do lead, the
beneficiary of the permission to believe he is entitled on a permanent basis
to enjoy the right…he may become entitled in equity to the easement by
proprietary estoppel (see E R Ives Investment Ltd v High [1967] 2 QB 379).
The landowner would not be able to withdraw the permission he had given.
20 years' enjoyment of the equitable right would surely enable the
beneficiary of the permission to claim a legal easement under the 1832
Act. In such a case it is easy to regard the enjoyment of the right pursuant
to the original permission as enjoyment by a person "claiming right
thereto". In such a case the original permission would be the
foundation of the claim of right but the enjoyment would not have
been precario. [my emphasis]

102. Second, if an agreement to grant an easement were entered into for good
consideration and the consideration were fully paid, the purchaser of the
easement…would become entitled at law after 20 years' use. His
enjoyment of the easement, although deriving from permission, would not
have been precario and, in my opinion, would have been enjoyment by a
person "claiming right thereto"…. It follows that the proposition that use
pursuant to permission given by the landowner is always precario
and cannot ever be as of right for prescription purposes is not
correct. [my emphasis]

103. The same is true of use of a public way, or a would-be public way,
following upon permission given by the landowner…20 years' use "as of
right" following a permission by a landowner that is indicative of an
intention to dedicate will produce a deemed intention to dedicate unless
the landowner can produce sufficient evidence that he had no such
intention (see section 1(1) of the 1932 Act and section 31(1) of the 1980
Act). [my emphasis]
[…]

104. ….Indeed, I do not, for the reasons I have given, accept that even an
express permission is necessarily inconsistent with use as of right.

105. Permission for the public to use land for recreational purposes…may,
depending on the terms of the permission, if it is express, and on the
surrounding circumstances, whether or not it is express, indicate to the
public that the permission is temporary only, may be withdrawn, and is
therefore precatory, or may indicate to the public that their right of use is
intended to be permanent. In the case of a path or track, a sufficient

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 indication, express or implied that the right of the public to use the path or
track was intended to be permanent would usually constitute a dedication
and create a public right of way…They [members of the public] would
simply use the way, following the indications that they could do so or
following the example of others who were using the way. Their use would
at least be "apparently as of right"…The dedicatory nature of the
permission that the public could use the path or track would positively
support the contention that their user was as of right rather than contradict
it.

106. Where a town or village green is concerned, however, a sufficient

indication, express or implied, that the right of the public to use the land for
recreational purposes was intended to be permanent could not itself endow
the land with that status. But the quality of the use of the land by the
public, following the dedicatory indications in question, would surely
be "as of right". It seems to me to be quite unreal to draw a distinction
between the quality of use of a path or track by members of the public
following an express or implied dedication and the quality of the
recreational use by members of the public of a piece of land following
permission given by a landowner that, if dedication of land as a town or
village green had been possible, would have constituted a dedication. In
each case the quality of the use, entirely consistent with the nature of the
permission that had been given, would have been "apparently as of right".
The only difference would have been that in the case of the public right of
way the landowner could not, once the dedication had been accepted by
public use, terminate the use, but in the case of the land used for
recreational purposes the landowner could, provided the 20 years had not
expired, terminate the use. But this difference does not seem to me to bear
upon the quality of the use of the land by the public in the meantime. [my
emphasis]

107. …Whether express or implied, permission to use a path over land or to

use land for recreational purposes may be of a sufficiently dedicatory
character to justify the same conclusion, namely that use by the
public thereafter is use "as of right". [my emphasis]

108. Lord Scott’s point is clear. The 1965 Commons Registration Act and the 2006
Commons Act lean heavily on and use similar language to the Prescription Act
1832 and the Rights of Way Act 1932. ―As of right‖ carries the same meaning
throughout. Use of the land may be ―as of right‖ if it is done without permission. It
can also be ―as of right‖ if permission were given originally and use has been
made of the land for twenty years without the landowner withdrawing permission
or demonstrating his/her right to do so. Put simply, rights over the land are
acquired by the kind of use made of it over twenty years, whether or not the
use began with permission. The Land Registry says:

109. ―Prescription is the acquisition of a right through long use or enjoyment

(―user‖): the law presumes that the right was lawfully granted.‖

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110. In R v Secretary of State for Environment Ex Parte Robert D Billson, Scott LJ
made the same point:

111. "This seems to me the simplest and truest interpretation of the three words
'as of right', …. It is doubtless correct to say that negatively they import the
absence of any of the three characteristics of compulsion, secrecy, or
licence - 'nec vi, nec clam, nec precario', phraseology borrowed from the
law of easements - but the statute does not put on the party asserting
the public right the onus of proving those negatives, … [my emphasis]

112. The true interpretation of those words ´as of right' seems to me to be that
he [the user of the land] has done so upon a claim to do it, as having a
right to do it without the lord's permission, and that he has so done it
without that permission...It is the requisite quality of the act, not merely the
act itself, which is here defined .... The essential quality of the acts - that is,
as acts done as of right - has from early days in our law been established
by showing that the acts were done openly .... I think it right, therefore, to
hold that, where the words ´as of right' are used in the Rights of Way Act
1932, in connection with actual enjoyment, they are satisfied if the
evidence shows that the actual enjoyment has been open, not by
force and not by permission from time to time given." [my emphasis]

113. Lord Bingham is clear about what a landowner needs to do to ensure that use of
his/her land is ―precario‖ and that people do not establish prescriptive rights over
it by the quality of their use of it over time:

114. ―A landowner may so conduct himself as to make clear….that the

inhabitants’ use of the land is pursuant to his permission. This may be
done, for example, by excluding the inhabitants when the landowner
wishes to use the land for his own purposes, or by excluding the
inhabitants on occasional days…[…] ...If his [the owner’s] 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…‖ [my emphasis]

115. In paragraph 2.9 of its objection, the council claims that, to be ―as of right‖, use of
the land must be trespassory. Again, this is not right. In Beresford, the application
to register the land as a village green was successful, despite the fact that the
public’s use of the land was not trespassory. Lord Scott deals with this point:

116. ―…in the present case, the attitude of the successive owners of the Sports
Arena to the public use of the land for recreation was more than mere
acquiescence or toleration. There was, I agree, positive encouragement.
The provision of the rows of benches was to make more comfortable the
watching of the activities of others. The cutting of the grass was in order to
enhance the enjoyment of the Sports Arena by those using it. I am

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 receptive to the submission that the successive owners had impliedly
consented to the recreational use of the land by the public. The users
were, in my opinion, certainly not trespassers. But this does not, in
my opinion, answer the question whether the use was "as of right" or
"nec precario". [my emphasis]

117. Was there any sign that the permission was intended to be temporary
or revocable? There was none. The fact that the land was publicly owned
seems to me highly material. Neither the WDC nor the CNT nor the council
were, or are, private landowners. Their respective functions were and are
functions to be discharged for the benefit of the public. The provision of
benches for the public and the mowing of the grass were, in my opinion,
not indicative of a precatory permission but of a public authority, mindful of
its public responsibilities and function, desirous of providing recreational
facilities to the inhabitants of the locality. In these circumstances there
seems to me to have been every reason for the inhabitants of the locality
who used the Sports Arena to believe that they had the right to do so on a
permanent basis.‖ [my emphasis]

118. Lord Rodger agreed:

119. ―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. [my emphasis]
[…]

120. ―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.” [my emphasis]

121. Lord Walker of Gestingthorpe also agreed:

122. ―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

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 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….‖

123. 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". [my emphasis]

124. 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.

125. 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".

126. ―[…] As Lord President Normand pointed out in Marquis of Bute v McKirdy
& McMillan acquiescence on the part of a proprietor in continued user
throughout the prescriptive period without taking steps to assert or
record his right of exclusion will result in the constitution of a public
right of way against him. If acquiescence in these circumstances
produces such a result encouragement can even more readily be said to
have the same consequences".‖ [my emphasis]

127. The result of this is that, where any land has been made available for public
recreation, only overt, temporary and revocable permission to use the land can
defeat use ―as of right‖. The landowner has to make the public aware that the land
is being used only by permission, and temporary, revocable permission at that.
Moreover the onus is not on the person asserting the right to prove that he/she
has used the land without permission. The onus is on the landowner to prove that
overt permission has been given. This the council has failed to do. There are no
notices on the land to identify the owner. There are no notices on the land to limit
or regulate the use people make of it. The land is never closed to the public.
There are no notices to suggest that the public is using this land with the

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 permission of the council. No charge is made for using the land, regardless of
what use the public might choose to make of it.

128. The Sunningwell judgement explored whether or not it is important that people
using the land do so believing they are using it as of right. The judges in that case
decided that there was no onus on the applicant to prove what people were
thinking. However, in the case of the Downs, what people think about the land is
instructive. As part of producing the village green application, I have spoken to
scores of people who later completed evidence questionnaires. Their immediate
response to any hint that the council might want to develop this land was the
same: "They can't do that. It's ours." In the mind of the local people, this land was
given to the town for the townspeople to use forever - that is why they use it, not
because they think they have permission from the council. Local people describe
the land as theirs and behave as if they have a right to use it however they wish.
This is true “as of right” usage.

129. A useful local case here is that of Heartenoak Playing Fields. The land was
formally listed as playing fields and Hawkhurst Parish Council actively maintained
and managed the site for recreational purposes. KCC’s Divisional Director rightly
said in his/her report to the registration committee:

130. ―…if a landowner gives permission but does not let the world at large know
the terms of that permission by erecting notices or taking other overt action
and the public continue to use the land then they may well, despite the fact
that the landowner thinks it is with his permission, be gaining a right by
implied dedication. In essence, permission must be communicated and
revocable, or else it is acquiescence….there is no evidence to show that
the Parish Council has actually asserted its rights, as landowner, over the
land in question…‖ [my emphasis]

131. In its objection, the council quotes Lord Walker as saying that, if land is vested in
a local authority on a statutory trust under section 10 of the Open Spaces Act
1906, the inhabitants of the locality are beneficiaries of a statutory trust of a public
nature, and it would be very difficult to regard [them] as trespassers. I am not sure
why the council thinks this is relevant to this application as there is no evidence at
all that the land is held under the Open Spaces Act 1906 as I have already
demonstrated in Section 1 above. I have also already demonstrated that,
according to the House of Lords, use of the land does not have to be trespassory
for it to be ―nec precario‖.

132. Even if the land were held under the 1906 Open Spaces Act, there is no
precedent to suggest that a qualified right to use the land as a beneficiary of a
trust would be sufficiently precarious to render the use anything other than ―as of
right‖. Any statutory licence is insufficiently revocable to render use ―precario‖ and
therefore to prevent the land becoming a town or village green. A statutory licence
is not enough, using Lord Rodger’s words, ―to show that the inhabitants were
disporting themselves only by the owners' revocable leave or licence.‖ Something
more is required to render the use ―precario‖. The council has failed to
demonstrate that it has done anything to make the use of this land ―precario‖.

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133. The 1875 Act, under which the council claims the land is held (but has failed to
prove that this is so), carries no such obligation to hold the land in trust for public
use to the extent that any member of public using the land is doing so as a
beneficiary of that trust and therefore is using the land ―by right‖. There is nothing
in the 1875 Act that alludes to the right of the public to use the land. The 1875 Act
gives public authorities powers in relation to recreation, but no duties or
obligations. This is in clear contrast to the 1906 Open Spaces Act which says that
the local authority shall hold the land ―…in trust to allow, and with a view to, the
enjoyment thereof by the public as an open space.‖ There is no such right given
to the public by the 1875 Act, therefore if use were under the 1875 Act it would
not be "by right".

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 Summary - the Downs is a legitimate village green
134. Canterbury City Council's argument has no merit. The onus is on the council to
prove that local people have not acquired prescriptive rights over this land by their
use of it over the last 20 years. The council’s objection is invalid for a host of
reasons.

135. The council has failed to prove that the application land is held under the
1875 Act.

136. Only K912449 was acquired under the Public Health Act 1875 and the
overlap between this and the application site is small
137. K911306, which overlaps the application site for one house plot, was not
acquired under the 1875 Act
138. K901348 was not acquired under the 1875 Act
139. K912167 was not acquired under the 1875 Act
140. The council has provided no documents that identify clearly the application
site east of Sea View Road
141. The council has not mentioned a number of parcels of land in the eastern
half of the application site for which the Land Registry holds details
142. The Herne Bay Urban District Council (HBUDC) minutes do not mention
any appropriation under the 1875 Public Health Act
143. HBUDC knew how to use the Public Health Act to appropriate land – it did
so in 1881. However, there is no evidence in the minutes that it did so in
1901 for the parcels of land we are looking at here
144. Part of the Council's objection is based on HBUDC minutes which relate to
land entirely unrelated to the application site
145. Whilst some of the bye law documents refer to the council’s power to set
bye laws under the 1875 Act, none say that the land is held under the 1875
Act
146. The council has included bye laws that do not relate in any way to the
application site
147. If there are still valid bye laws relating to the application site, they are
nowhere in evidence on the land
148. A number of the bye laws in these documents are completely disregarded
by users of the land, have been for decades, and no action has been taken
149. No bye law documents have been produced for the last forty years. If the
council ever did think that it was managing this land under the 1875 Act, it
ceased to take any active steps to do so some decades ago
150. The words ―pleasure ground‖ and ―public walks‖ were in common use
decades before the land was appropriated and the covenants written. Use
of these words in the covenants is in no way evidence of a specific and
narrow legal definition of the land's status
151. My argument about the use of language is strengthened by the fact that
some covenants use the term ―open space for the public‖, a phrase that
predates the 1906 Open Spaces Act by some years
152. Whilst K912449 was appropriated under the 1875 Public Health Act the
deeds do not use language drawn from it, showing that the council’s
assertion about the use of language has no basis in fact – there is no

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 actual or necessary correlation between the phrases used and the legal
powers used
153. The 2006 Commons Act was born of the recognition that mistakes were
made in the registers developed using the 1965 Commons Registration
Act. There is no assumption built in to the legislation that all previous
applications were correctly decided
154. Roughly half of the land that the previous Commissioner was considering
has nothing to do with this application
155. The Commissioner’s decision relates to just one third of the application
land
156. The Commissioner’s decision about ―as of right‖ use runs to one paragraph
and offers no insight into his thought process. He does not deal at all with
the issue of rights being acquired by prescription. Since his decision thirty
years ago there have been detailed decisions on this issue made in the
House of Lords which suggest that the Commissioner’s decision would be
seen as wrong today
157. The council does not list the Downs under Outdoor Sports and Recreation
Facilities
158. The council does not list the Downs under Parks and Gardens
159. The council describes the land in the few public documents in which it
appears as a semi-natural open space
160. The council has done nothing to demonstrate to local people that it holds
this land as a recreational space under the 1875 Act
161. There are no fences preventing access to the land
162. There are no notices suggesting that use of the land is in any way
regulated or constrained
163. There are no notices to say that the landowner is giving permission for
people to use this land

164. The council has failed to demonstrate that holding land under the 1875 Act
is a bar to registration as a village green

165. The 2006 Commons Act provides that any land can be registered as a
village green by the landowner. There is no mention anywhere in the
legislation or in the debates that suggests that land held under the 1875
Act can not be registered as a village green
166. Village greens have been registered by councils who held the land under
the 1875 Act or the 1906 Act which shows that 1875 land can be registered
as a village green
167. The assertion that land held under the 1875 Act would preclude use ―as of
right‖ has never been decided in law. The judges in Beresford took pains to
make it clear that this was a decision for another day

168. The council has failed to demonstrate that use of this land over the last 20
years has not been "as of right"

169. ―As of right‖ draws its meaning from the Prescription Act 1832 and the
Rights of Way Act 1932

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170. For the council to demonstrate that local use was not ―as of right‖, it must
demonstrate that use depends on permission from the landowner and that
that permission could be withdrawn at any time
171. Lord Scott concludes that if a landowner gives permission to use land in a
way that suggests to the local inhabitants that that permission is
permanent, then, if the inhabitants use that land for twenty years their use
would be ―as of right‖
172. Rights over land are acquired by the kind of use made of it over twenty
years, whether or not the use began with permission. It is the quality of the
use that matters. We have been using this land for lawful sport and
pastimes for over twenty years
173. Lord Bingham is clear that if a landowner’s position is to be that use of the
land is ―precario‖ (thus defeating an ―as of right‖ claim), he/she must do
something to make the public aware of this. The council has done nothing
174. The council claims that ―as of right‖ use must be trespassory. This is
incorrect. Use of the land in Beresford was not trespassory – indeed, the
council encouraged people to use it. Nevertheless, the land was registered
as a village green
175. The council claims that a statutory licence renders use of the land ―by
right‖. To be able to have a chance of running this argument, the council
would have first to prove that the land is held on statutory trust. It has not
done so
176. Secondly, even if the council could prove this, there is no legal precedent
to help the council to take this further. A statutory licence is insufficiently
revocable to show that the people using the land are ―disporting
themselves only by the owners’ revocable leave or licence‖. Land held by
statutory trust, with neither overt permission nor regulation, plus twenty
years’ use of that land for lawful sports and pastimes throughout the period
is use ―as of right‖
177. Thirdly, the permission that the council asserts it has given us can only be
that described in the bye laws. Local people have used the land for many
other lawful sports and pastimes for twenty years above and beyond those
described in the bye laws and have acquired rights by prescription
178. There is nothing in the 1875 Act which gives the public any right to use
land held for recreation
179. Where land has been made available for recreation for over twenty years,
only overt, temporary and revocable permission to use the land will defeat
use ―as of right‖
180. The evidence questionnaires demonstrate that local people use the land
and have done so for a period of at least twenty years
181. The evidence questionnaires demonstrate that local people use the land
for lawful sports and pastimes
182. The evidence questionnaires demonstrate that in those twenty years
people have neither sought nor been given permission to use the land
183. The evidence questionnaires demonstrate that people can access the land
whenever they wish
184. This is true ―as of right‖ usage – local people using the land exactly as if
they had the right to do so and the landowner doing nothing to disabuse
them of this fact nor to assert its rights over the land

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185. We have gained rights over this land because of the quality of our use of it
for a wide range of lawful sports and pastimes over a period of more than
twenty years.

186. If the council ever had rights to revoke permission to use the land it has lost the
right to do so following a period of at least twenty years’ use of the land by people
engaging in lawful sports and pastimes. The council has not acted in any way to
prevent local people from acquiring prescriptive rights over the land to enjoy
lawful sports and pastimes, many of which are forbidden in the bye laws on which
the council seeks to rely.

187. Finally, I would like to make a common sense point about the spirit of the law. The
argument that the council is seeking to run goes thus:

188. “Landowners gave land to the town over a hundred years ago for local people to
use for lawful sports and pastimes for ever. That land was vested in the local
authority and a clear contract agreed that this would be an open space available
to the people for recreation for ever. Local people use the land because they have
a right to do so. Because subsequent legislation allows us to, we can dispose of
this land at any time, despite the contract we made with those who donated the
land in the first place and our promise to keep the land for local recreation for
ever. However, had local people used this land as trespassers for twenty years,
they would have acquired the right to protect this land as an open space for
people to use for lawful sports and pastimes ever.”

189. This argument would mean that people who are given a legal right to use land for
recreational purposes can lose the right to use it, whereas people who have no
right to use the land for recreational purposes and who trespass on it can acquire
the right to use it for ever. This is not what either the 1965 Commons Registration
Act or the 2006 Commons Act envisaged. As Lord Hoffman says in the
Sunningwell judgement:

190. ―In passing the [prescription] Act in 1932, Parliament clearly thought that
the previous law gave too much weight to the interests of the landowner
and too little to the preservation of rights of way which had been for many
years in de facto use…..And in defining class c town or village greens by
reference to similar criteria in 1965, Parliament recognised a similar public
interest in the preservation of open spaces which had for many years been
used for recreational purposes.‖

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 The reason for the council’s objection
191. Since December 2009, the council has been telling us that it has no objection to
the Downs becoming a village green, were it not for the fact that ―you have to ask
the Secretary of State’s permission before doing maintenance work on a village
green.‖ Clearly, someone within the council has misunderstood the law.

192. We have spoken to Defra, to the Open Spaces Society, and to the village green
registration team at KCC. We have also spoken to people in Whitstable who are
actively involved in village green maintenance with the council. They all tell us the
same story – there is no problem with maintenance and other work that is for the
―better enjoyment‖ of the village green. We have shared all this information with
the council and have offered to set up a meeting to help the council to understand
what its own experience of managing village greens should already have told it –
there is no need to ask the Secretary of State’s permission before doing
maintenance work on a village green.

193. Whatever the merits of the council’s ―1875 Act‖ objection (and I have
demonstrated above how little merit this objection has), it is clear that the council
is using this objection as a vehicle for avoiding the Downs becoming a village
green because the council believes that this will cause future maintenance
problems.

194. It occurs to me that KCC is in a perfect position to help the council to understand
the true position regarding maintenance and thus to remove the only real
objection that the council has. If the council’s concerns about maintenance can be
addressed (the council has already said that it has no other objection), then the
council has no need to oppose this village green application and a lot of public
money would be saved. We have offered to arrange a meeting for the council with
reliable sources of information such as the Open Spaces Society, KCC and Defra
but the council has not responded. Is this something that KCC can do so that the
council can be properly informed about the maintenance implications of village
greens?

195. If we can deal with this sole concern of the council about maintenance, then the
council’s only objection to the Downs becoming a village green falls away and
there is no reason then, so the council tells us, for the council to oppose this
application.

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