Campaigners managed to save a much loved sports arena from development after a three-year legal battle, following a landmark decision by the House of Lords that could preserve “thousands of acres of land” for public enjoyment.
In Regina v City of Sunderland ex parte Beresford, the five Law Lords unanimously ruled that a sports arena could be registered as a town green, ensuring that the public would be able to continue enjoying the land. A residents’ group, the Washington First Forum, fought to save the land in Washington, Sunderland, which was threatened by development for a further education college. The residents applied to Sunderland City Council in 2000 to register the sports arena as a green. The council rejected the application, despite the fact that a poll showed that 89 per cent of local people were in favour. The campaigners lost an appeal to the High Court and a further case in the Court of Appeal.
Under the Commons Registration Act 1965, land can be registered as a town or village green if, for at least 20 years, it has been used for ‘lawful sports and pastimes’ by local people. The use must have been without permission, without being stopped and without being secretive. Two pieces of 19th century legislation, the Inclosure Act 1857 (section 12) and the Commons Act 1876 (section 29), make it an offence to encroach on a green, and so the land is effectively protected.
“This case is of vital importance to those many people who want to rescue threatened land by registering it as a green,” said Nicola Hodgson of the Open Spaces Society, which backed the campaign. “Much of this land is owned by local authorities who were relying on the arguments used by Sunderland City Council in the Washington case.” The council contended that the public could not claim to have used the land ‘as of right’ because the council had mowed the grass and erected seats, which, it was argued, implied that it had given the public permission to be there.
Since one of the criteria for registering a green is that the land has been enjoyed ‘as of right’, which includes enjoyment without permission, this argument was being used to defeat the applications. But in the Sunderland case, Lord Scott of Foscote considered that “the positive encouragement to the public to enjoy the recreational facilities of the sports arena, constituted, in particular, by the provision of the benches, seems to be not to undermine but rather to reinforce the impression of members of the public that their use was ‘as of right’.”
Hodgson said: “This case reopens the doors to all those who want to register land where the landowner has appeared to be encouraging people on to it. No longer will such action have an adverse effect on their application. Indeed, such encouragement reinforces the argument that the public has enjoyed the land ‘as of right’.”