In Barkas v North Yorkshire County Council [2012] EWCA Civ 1373 CA held that a playing field, which had been acquired by a local authority under s80(1) of the Housing Act 1936 (now s12 of HA 1985), and thereafter maintained as a recreation ground, had been appropriated for the purpose of public recreation, and that, since the authority had an express statutory power to maintain the field for recreation purposes, local inhabitants using the field had been doing so, not “as of right” but rather “by right”. Therefore the field could not be registered as a town or village green. S10 of the Open Spaces Act 1906, considered by HL in R (Beresford) v Sunderland City Council [2004] 1 AC 889, is not the only example of land which is provided by a local authority as open space which the public use for recreational purposes “by right”.

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