Civility of the users
R (on the application of Kevin Paul Lewis) v Redcar and Cleveland Borough Council & Persimmon Homes plc
 UKSC 11
The Supreme Court has allowed the appeal of Mr Lewis, from the dismissal of his application for judicial review of the council’s decision to refuse to register land in Redcar known as Coatham Links as a town green under s15(4) of the Commons Act 2006, and ordered the council to register the land.
Section 15(4) of the 2006 Act applies where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least twenty years.
The facts found by the inspector appointed by the council were that part of the land had until 2002 been used for decades as a popular golf course by tenants of the council; that non-golfing local inhabitants used the same land extensively for informal recreation such as dog walking and children’s play; that walkers would not walk on playing areas when play was in progress or would wait until play had passed or they were waved across; so that the recreational use by local people overwhelmingly deferred to golfing use.
In those circumstances the inspector advised the council that the use of the land by local people was not “as of right” until 2002 when the golf course use ceased so that section 15(4) of the 2006 Act did not apply.
Application for judicial review
Sullivan J asked himself how the matter would have appeared to the golf club and concluded that it would not have been reasonable to have expected the club to resist the recreational use of the land by local residents if that use did not in practice interfere with its use by the golf club. The Court of Appeal agreed with that approach and could not see any basis for challenging the council’s decision on public law grounds by way of judicial review.
Supreme Court decision
The Supreme Court disagreed and allowed the appeal. Lord Walker (at paragraph 36) said that Lord Hoffmann was absolutely right in R v Oxfordshire County Council Ex p Sunningwell Parish Council  1 AC 335 to say that the English theory of prescription is concerned with how the matter would have appeared to the owner of the land but he reached a different conclusion to the courts below on the facts:
"But I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility (or, in the inspector’s word, deference) towards members of the golf club who were out playing golf. It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted (as all the members of the court agree, in much the same terms) with courtesy and common sense. But courteous and sensible though they were (with occasional exceptions) the fact remains that they were regularly, in large numbers, crossing the fairways as well as walking on the rough, and often (it seems) failing to clear up after their dogs when they defecated. A reasonably alert owner of the land could not have failed to recognise that this user was the assertion of a right and would mature into an established right unless the owner took action to stop it."In the light of that he held (paragraph 38) that the Inspector had made an error of law because he had misdirected himself as to the significance of perfectly natural behaviour by the local residents. In paragraph 20 Lord Walker said:
"The proposition that 'as of right' is sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor stealth, nor the licence of the owner) is established by high authority."Lords Hope, Brown and Kerr agreed that there was, as Lord Brown put it in paragraph 107:
"… no good reason whatever to superimpose upon the conventional tripartite test for the registration of land which has been extensively used by local inhabitants for recreational purposes a further requirement that it would appear to a reasonable landowner that the users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging."Lord Kerr explained (paragraph 114) that what underpinned the assertion by the council that it was necessary to show not only user nec vi, nec clam, nec precario but also that it was reasonable to expect the landowner to resist the use of the land by local inhabitants was:
"… the view that the registration of the lands as a village or town green had the inexorable effect of enlargement of the inhabitants’ rights and the commensurate diminution of the right of the owner to maintain his pre-registration level of use, if that interfered with the inhabitants’ extended use of the lands."This view derived from the majority ruling by the House of Lords in Oxfordshire County Council v Oxford City Council  2 AC 674 that registration as a green gives the right to use the land for any lawful sports and pastimes, not only those which had been the basis for registration. In the Court of Appeal, Rix LJ was concerned (paragraph 65) that if the appeal succeeded there would be no way of resolving questions that would arise as to whether the local inhabitants could, for example, walk on the greens during play or even play golf as if they were members of the club. These were hypothetical questions in the particular case since the land had ceased to be used as a golf course but Lord Walker doubted (paragraph 41) whether the attitude of the inhabitants would have suddenly turned from friendly civility to vindictive triumphalism after registration. But the question of law raised did need to be considered on the footing that it was possible that relations between the two groups might become rather more strained. Addressing that question caused Lord Walker to reconsider (paragraph 47) the general agreement that he expressed with what Lord Hoffmann said in Oxfordshire (paragraphs 49 to 51) about registration as a green creating rights to use the land generally for sports and pastimes. He found that he agreed with everything apart from the notion that a custom to have an annual bonfire on Guy Fawkes Day could be a sufficient basis for registration of a green. Lord Walker remained in agreement with what Lord Hoffmann had said in paragraph 51 that registration:
"… does not mean that the owner is altogether excluded from the land. He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants. There has to be give and take on both sides."Once the special case of the annual Guy Fawkes Day bonfire was eliminated Lord Walker saw:
"… little danger, in normal circumstances, of registration of a green leading to a sudden diversification or intensification of use by local residents. The alleged asymmetry between use before and after registration will in most cases prove to be exaggerated. Golfers and local residents can co-exist without much friction even when the latter have established legal rights."Lord Hope found nothing in s15(4) of the 2006 to support the approach of the courts below, that the effect of registration would be to enlarge the rights of the local inhabitants in a way that would effectively prevent the golfers from using the land for their own purposes (paragraph 71):
"On the contrary, the theme that runs right through all of the law on private and public rights of way and other similar rights is that of an equivalence between the user that is relied on to establish the right on the one hand and the way the right may be exercised once it has been established on the other. … one looks to the acts that have been acquiesced in. It is those acts, and not their enlargement in a way that makes them more intrusive and objectionable, that [the owner] afterwards cannot interfere to stop. This is the basis for the familiar rule that a person who has established by prescriptive use a right to use a way as a footpath cannot, without more, use it as a bridleway or for the passage of vehicles."Lord Brown referred (paragraph 105) to the fact that in Oxfordshire, the land was disused scrubland so that the owner could not complain if the local inhabitants gained full and unqualified recreational rights on registration but, in paragraph 106, on the different facts of the instant case:
"… had the use of the land as part of a golf course continued, the locals would in my opinion have had to continue “deferring” to the golfers."In agreement with Lords Hope and Walker, Lord Kerr (paragraph 115) that the view that enlargement of rights post-registration was the effect of the relevant authorities, including Oxfordshire, may now be discounted because:
"Whatever may have been the position previously, however, it is now clear that, where it is feasible, cooperative, mutually respecting uses will endure after the registration of the green. Where the lands have been used by both the inhabitants and the owner over the pre-registration period, the breadth of the historical user will be, if not exactly equivalent to, at least approximate to that which will accrue after registration."Conclusion
The decision of the Supreme Court means that the Coatham Links Coastal Regeneration Project for a mixed development of residential and leisure purposes over 14 hectares will not now be able to be realised, certainly as planned and possibly not at all. Lords Walker and Rodger both referred to Parliament having declined to amend the law to address doubts expressed by the House of Lords in Beresford and Oxfordshire about the extension of protection to land very different from a traditional village green, Lord Walker observing that the 2006 Act made it easier rather than more difficult to register a green. The consultation that is proposed take place this spring might result in legislation that will curb what, as Lord Walker observed (paragraph 48) is referred to by some as the village green industry which sees applications for registration being used as a weapon of guerrilla warfare against development of open land. But whatever the outcome of the proposed consultation it seems likely that the courts will again be called upon to adjudicate between users and owners of open land in cases where there has been co-extensive use historically, most likely related to how the balance is to be struck between the use which each group is entitled to make of the land following registration as a green.
Appropriation for public recreation
Barkas v North Yorkshire County Council
 EWCA Civ 1373
Where a local authority had appropriated a playing field for public recreation, use by locals had not been “as of right”.
A field that had all the appearance of a typical municipal recreation ground was acquired by the council in 1951 and subsequently maintained by the council as a recreation ground by virtue of statutory provisions, now contained in the Housing Act 1957. An application was made to register the field as a Town or Village Green (“TVG”).
The application was rejected by the local authority after accepting the recommendation of an Inspector that, although all of the other pre-conditions for registration had been satisfied (in particular use by local inhabitants as of right for lawful sports and pastimes for at least 20 years continuing at the date of the application), the applicants had not demonstrated that the user had been “as of right”, as required by s15(2)(a) of the Commons Act 2006.
The issue was whether the user had been “by right” rather than “as of right”, since the playing field had been laid out and maintained by the local authority under statutory powers. The Inspector had concluded that the users of the field must have had a legal right to use the playing field since the field was laid out and maintained as a recreation ground open to the public pursuant to statutory powers. As such the use had not been “as of right”.
A claim for judicial review of the decision to reject application to register the field as a TVG was dismissed. This was now an appeal against that dismissal.
Sullivan LJ made reference to obiter comments in R (on the application of Beresford) v Sunderland City Council  UKHL 60. In that case Lord Walker said:
“Where land is vested in a local authority on a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers). The position would be the same if there were no statutory trust in the strict sense, but land had been appropriated for the purpose of public recreation.”Sullivan LJ went on to say:
“The local inhabitants can fairly be said to have a statutory right to use land which has been “appropriated” for lawful sports and pastimes because the local authority, having exercised its statutory powers to make the land available to the public for that purpose, is under a public law duty to use the land for that purpose until such time as it is formally appropriated to some other statutory purpose under section 122, or in the case of a recreation ground provided and maintained under Housing Act powers (now section 12 of the 1985 Act), a formal ion is taken that it shall be used for some other housing purpose.”Conclusion
The local inhabitants had not therefore indulged in lawful sports and pastimes on the field “as of right”.
Appropriation for public recreation
R (on the application of Stephen Malpass) v Durham County Council
 EWHC 1934 (Admin)
A refusal to register land as a town and village green had been based on flawed reasoning of an inspector that the use by locals had not been “as of right” due to implied permission.
An application was made by M to register 12 acres of public recreation land as a town or village green (TVG), under s15 of the Commons Act 2006. The land was owned by the local authority (L), which wanted to use it in connection with the construction of a new academy on a contiguous site.
The application was refused by the local authority after accepting the recommendation of an inspector following a non-statutory public inquiry. The inspector held that, although all of the other pre-conditions for registration had been satisfied, M had not demonstrated that the user had been “as of right”, as required by s15(2)(a) of the Commons Act 2006.
This was because the user had been with the express or implied permission of L, by reason of the playing fields having been appropriated for the purpose of public recreation, that rendered the use of the land as being by permission and not “as of right”. The inspector held that the land was the subject of a statutory trust under either section 10 of the Open Spaces Act 1906 or the Public Health Act 1875 as confirmed, clarified or recorded by L under a Deed of 1964.
M sought a judicial review of the refusal to register the TVG on the ground that the decision took into account an immaterial consideration or an error of law in that the 1964 Deed was treated as an appropriation and/or it was concluded that no appropriation was required to apply the provisions of the 1906 Act.
The High Court found for M. The conveyance of the land to L in 1936 did not adequately state under what power or authority the land was acquired or held: it simply recited that the land was required by L for purposes for which they are authorised by statute to acquire land.
In the absence of a formal or lawful appropriation, once land was acquired for one purpose it could not, broadly, be used for another purpose. There was no evidence of an express appropriation of the land for recreational purposes and the 1964 Deed was incapable of amounting to an informal appropriation. Therefore the necessary formalities had not been complied with for the land to be held on statutory trusts for public recreation.
In the circumstances the Judge remitted the application to the local authority for it to consider the matter afresh in the light of the judgment.
The point of principle that emerges from this decision is that if the land had indeed been held for the purposes of s10 of the 1906 Act or under s164 of the 1875 Act then it would have been held on statutory trusts for public recreation and the public’s use would have been “by right” not “as of right” and registration as a green would have been rightly refused. But in the particular case there was insufficient evidence of the land being held for such purposes.
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