One of the early town and village green (TVG) cases dealt with land owned by a local authority and used for many years as informal public open space (R on the application of Beresford v Sunderland City Council [2003]).

In order to succeed in a claim to register land, a claimant must show (among other things) use of the land "as of right" for 20 years. In Beresford, the court found that the local authority had allowed the public use of the land. However, despite the council mowing the grass and placing seats on the land, there was no implied permission given to the public to use the land. Therefore the use by the public was "as of right" and the land was registered as a TVG.

That decision has continued to be problematic but in R (on the application of Barkas) v North Yorkshire County Council and Scarborough Borough Council [2014]  the Supreme Court has finally distinguished Beresford and given guidance on use "as of right".

Lord Neuberger explained the difference between use "as of right" and "by right":

"….If a person uses land "by right", the use will have been permitted by the landowner – hence the use is rightful. However, if the use is "as of right", it is without the permission of the landowner and is therefore not "by right" but is carried on as if it were by right."

Lord Neuberger went on to say:

"As against the owner (or more accurately, the person entitled to possession) of land, third parties on the land either have the right to be there and to do what they are doing, or they do not. If they have a right in some shape or form (whether in private or public law) then they are permitted to be there and if they have no right to be there, then they are trespassers. I cannot see how someone could have the right to be on land and yet be a trespasser (save, I suppose, where a person comes onto land for a lawful purpose and then carried out some unlawful use). In other words a "tolerated trespasser" is still a trespasser."

In Barkas, land was held by the Borough Council and maintained as a recreation ground for over 50 years. It was used by residents of the surrounding housing for the usual informal leisure activities. The report of the inspector appointed to hold a non-statutory inquiry into the application for registration concluded that while all the other criteria for a TVG had been met by the applicants, the use had not been "as of right". That conclusion was upheld by the High Court, the Court of Appeal and the Supreme Court.