R (Beresford) v Sunderland CC (2004) 1 AC 889
In this case it was held that a licence to use land could not be implied from the mere inaction of a landowner with knowledge of the use to which his land was being put.
Lord Scott stated "I believe this rigid distinction between express permission and implied permission to be unacceptable. It is clear enough that merely standing by, with knowledge of the use, and doing nothing about it, i.e. toleration or acquiescence, is consistent with the use being as of right".
However, it is also clear that permission may be implied from the conduct of a landowner in the absence of express words. Lord Bingham stated that a landowner may so conduct himself as to make clear, even in the absence of any express statement, notice, record, that the inhabitants' use of the land is pursuant to his permission. But encouragement to use a way may not equate with permission. Lord Rodgers added "the mere fact that a landowner encourages an activity on his land does not indicate that it takes place only by virtue of his revocable permission."
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