Why the battle of Eastfield looks set to be lost

In 2010, Eastfield Parish Council made a bid under the Commons Act to register two pieces of irregular shaped grassland which fall between Westway and Ryefield Road as village greens.

Scarborough Council, which owns the land, objected, stating that any use of the land by residents was “by right” of the council not “as of right” which meant it did not pass the tests but down by the Commons Act.

On Friday this week (12 October), North Yorkshire County Council’s planning sub-committee will be recommended to find in favour of Scarborough Council, thus ending the parish council’s long fight.

The report, which will go before the committee, apologises to everyone for the time taken to reach a decision.

It states: “Your officers regret the delay there has been seeking a determination of this application which has been caused in part by waiting for court decisions and by staff changes and other administrative reorganisation at the county council.”

Eastfield Parish Council argued that the land was used as of right by the public and that the county council had approved other such village green applications.

However, the county cited a 2014 court ruling which altered how it determined applications.

The report added: The Supreme Court determined that where land is used by the public in exercise of a statutory right to do so then that use is ‘by right’. Lord Neuberger described such use to be the antithesis of a use ‘as of right’.”

The county concluded that as the borough council owns the land in question then the village green application must fail.

It concluded: “Consequently any public use of the land must have been ‘by right’ and not ‘as of right’ as is required by the Act and consequently the application should be refused.

“It is correct, as the Parish Council has pointed out, that a previous application to register similar types of areas was approved by the county council. However, the legal position at that time was different.”