The battle over town and village green status rages back and forth.

Land in both public and private ownership is eligible for registration as a town or village green and, once registered, cannot be developed. However, applicants must first show that a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have used the land “as of right” for lawful sports and pastimes for at least 20 years. In R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31; [2014] PLSCS 158 the Supreme Court refused to uphold an application to register land owned by a local authority as a green because the authority had validly and visibly committed the land for public recreation. Therefore, local inhabitants had been using the land by right – and not “as of right” – and it was not eligible for registration as a green. What, then, are we to make of R (on the application of Goodman) v Secretary of State for Environment, Food and Rural Affairs [2015] EWHC 2576 (Admin); [2015] PLSCS 267? The judge took the view that Barkas turned on the fact that the local authority held the land in question under powers that encompassed recreational use. By contrast, in Goodman, the local authority had allocated the land in question for employment use, and for the construction of a link road, and had never formally appropriated it for anything else. Despite a suggestion to the contrary in Oxy-Electric v Zainuddin [1990] EGCS 28, the judge refused to accept that he could infer that the land had been appropriated for recreational use simply by reference to the local authority’s conduct alone. The fact the Parks and Open Spaces Department had managed the land, and planted trees on it, did not signify that it had been appropriated for use as open space. Therefore, local inhabitants had been using the land “as of right” and it was eligible for registration as a green. It is possible to reconcile the decision with Barkas on the different facts. But in Barkas Lord Carnwath cited Oxfordshire County Council v Oxford City Council [2006] 2 AC 674, which concerned land that was largely inaccessible because much of it consisted of reed beds and impenetrable scrub, as an example of local authority land that was not laid out or identified in any way for public recreational use and would be eligible for registration in the post-Barkas world, if the public were allowed to use it for long enough. Goodman suggests that the scope of Barkas is narrower than this. The judge went on to reject the authority’s argument that it had excluded the public from the land, sometimes for days at a time, by licensing events – such as funfairs and circuses to which admission was by payment only – to be held on part of the land. The judge accepted that R (on the application of Mann) v Somerset County Council [2012] EWHC 814 (Admin) suggested that partial exclusion “may be taken to be referable to the whole of the land”, but distinguished Mann on the ground that the land in that case was in private ownership. Furthermore, the events that the local authority had permitted were not inconsistent with a public entitlement to use the land. It seems that the rules that apply to land in public and private ownership are very different indeed. Allyson Colby is a property law consultant