Tree in fieldIn an important victory for developers, which also represents a serious blow to those committed to preserving open spaces for public recreation, a campaigner has failed to convince the Supreme Court that a playing field which had been used by local people for more than 50 years should be registered as a town or village green.

The two-hectare field had been acquired in 1951 and had been maintained by the local authority as a recreation ground under Section 80(1) of the Housing Act 1936 (now Section 12(1) of the Housing Act 1985). The council arranged for regular mowing of the grass and marking out the football pitch and, for at least half a century, the field had been used extensively and openly by local inhabitants.

A local campaigner had applied under Section 15 of the Commons Act 2006 to register the field as a town or village green, a status that would have protected it against any future development. However, following a public inquiry, the council refused the application on the basis that, although a significant number of local inhabitants had indulged in sports and pastimes on the land for at least 20 years, they had not done so ‘as of right’, as required by Section 15.

A challenge to that decision was subsequently dismissed by the High Court and the Court of Appeal.  In rejecting the campaigner’s last-ditch appeal, the Supreme Court found that, as the field was held by the local authority under Section 12(1) of the Housing Act, members of the public had a statutory right to use it for recreational purposes. Their use of the land was therefore ‘by right’ rather than ‘as of right’.