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council wins turf war

9 February 2011

In R (Barkas) v North Yorkshire County Council and Scarborough Council the High Court has upheld the decision of the local authority not to register a playing field, set out and maintained as a recreation ground under section 80 of the Housing Act 1936 (HA 1936), as a town or village green under the Commons Act 2006.

The application failed on the grounds that use of the field was “by right” and not “as of right”. The Court followed the obiter comments made in the House of Lords in R (Beresford) v Sunderland County Council [2003] UKHL 60 that use by virtue of a legal right is not use “as of right”.

The decision could therefore make land which has been laid out by local authorities under section 80 of the HA 1936 more attractive to developers, since entitlement to use the land under these sections will prevent registration of land as a town or village green under CA 2006.

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