THE SETTING OF THE SUN ON THE VILLAGE GREEN ERA?

Abstract

The United Kingdom Supreme Court has recently handed down the much anticipated judgment in R (Barkas) v NorthYorkshireCounty Council(“Barkas”).  The case addressed the “by right” defence in village green law and whether use that is pursuant to a statutory right could be use “as of right” for the purposes of village green registration.  The court unanimously ruled that use “by right” could not be considered as use “as of right” and would not be qualifying use for the purposes of registration.  Use will be “by right” when it is pursuant to a statutory right to use the land, and is usually engaged when the land in question is in public ownership.  In reaching this judgment the court overruled the previous authority of R (Beresford) v SunderlandCity Council(“Beresford”).The Supreme Court left many questions unanswered, although the culmination of recent activity in village green law now makes it considerably harder to register new greens.  The inability to protect recreational spaces through village green registration potentially makes this land available for development, thus tipping the balance in favour of the economic aim, at the expense of the social and environmental aims, of sustainable development.