Commons Bill [HL]

My Lords, the noble Duke may not be surprised to hear that we do not agree that charity land should be exempted from registration as a green, but I thank him for raising this issue and it is important that it should be debated. The land would not fall to be registered in the first place unless for at least 20 years a significant number of local inhabitants had used it as of right for lawful sports and pastimes. As we have said in this House, that is a tough test. There may be no regular and discernible pattern of recreational use at all, or there may have been such a pattern but simple notices may have been in place at entry points to the effect that recreational users enter and use the land only with the charity’s permission. In such circumstances, a successful claim could not arise. On the other hand, if the local inhabitants have not only been using charity land freely over the years for their recreation but have been doing so without force, secrecy or permission, they are likely to have already formed the basis of an application to register the land. We think that in such a case it would be wrong for us to remove the existing scope for registration of such land when we repeal the current provisions about greens registration in favour of this clause. The other point that I want to make is that some pieces of land, including playing fields, will be owned by charities that may not be focused on preserving that land. A charity must be driven by its own charitable objects. It may decide that those are best met by releasing land for development and that it cannot give any special weight to any longstanding recreational use that local people may have made of the land in question. Exempting charity land from the scope for registration would remove the ability to protect land of this kind through the registration system. Of course we understand the concern from charities—the noble Duke mentioned the National Playing Fields Association—that Clause 15 will impose significant new burdens on them in their capacity as landowners. In our view, that concern is misplaced. If such land has already received the necessary qualifying use, it would be wrong for this clause to exempt land from achieving registration. However, it must be said that in practice, so long as local people remain free to use land for lawful sports and pastimes and do not perceive any threat to such use, they are unlikely to seek to register the land as a green in the first place, even where it already has the qualifying use. If, on the other hand, a qualifying pattern of recreational use has not yet been achieved, there are straightforward steps that a charity can take to prevent the land becoming registrable as a result of further use, if that is what it wants to do. For example, it can put up simple notices stating that recreational use takes place only by permission. The clause will not make it necessary, as has been suggested, for a charity to stop local people using its land, or to lock gates every evening, to avoid the land becoming registrable. It is well established that recreational use that is expressly permissive cannot give rise to registration as a green. The noble Duke mentioned the legal context of this issue. There is a school of thought among some lawyers that recreational use of land that directly reflects the landowner’s charitable objects is, by definition, incapable of supporting any claim that the land was used ““as of right””. The argument runs that, necessarily, the recreational use in such a case takes place with the implied permission of the charity, acting under its charitable objects to make provision for recreation of this type, and is subject to whatever constraints the charity is empowered by its governing instruments to make on such use. There is, in fact, no such generalised presumption. The Judicial Committee of your Lordships’ House has made it clear—in the case of Beresford v Sunderland City Council, reported in 2004—that what matters when local inhabitants use land owned or managed by a body that has recreational functions, such as a local authority, is the nature of that use and whether the actions of the landowner during the period relied upon would have made them aware that their use took place by permission rather than ““as of right””. Mere good-natured tolerance of recreational use by local people will tend to support, rather than defeat, a claim that such use took place ““as of right””. Whether the nature of the charity and the actions taken by it would be sufficient to defeat a claim of ““as of right”” use would entirely be a question of fact and evidence in each case. The fact that land happens to be in charitable ownership will often prove irrelevant when determining whether use has taken place ““as of right””.