This case arises out of a long running dispute between local residents and their council over the plan to allow developers to build new homes on Coatham Common in Redcar. The question for the Supreme Court was whether local residents could register the land, which had formerly been used as part of a golf course, as a “town green” under section 15 of the Commons Act 2006.
We have previously set out here the facts of the case, and the decisions below. The High Court and Court of Appeal had both decided that the residents could not register the land as a town green because they had not “indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”. The key basis for that decision was that in using the land for recreation, they “deferred” to members of the golf club playing golf on the land and, consequently, were not indulging in recreation “as of right”.
The Supreme Court (Lords Walker, Hope, Rodger, Brown and Kerr) has now unanimously reversed the Court of Appeal and found in favour of the residents, holding that this “deference” does not prevent the residents indulging in recreation as of right. Lord Walker gave the leading judgment, but each of the four other Justices added their own opinions, which collectively give important guidance on the system of registration under the Commons Act – in particular making it clear that if landowners wish to avoid their land being re-classified, the onus is on them to resist or restrict residents from using the land for recreational purposes.
What is key is the quality of the residents’ use of the land during the 20 years. It must have been by a significant number of the residents and they must have been indulging in lawful sports and pastimes on the land as of right. High authority establishes 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). Lord Kerr stated that if the residents’ use of the land:
- has been open in the sense that they have used it as one would expect those who had the right to do so would have used it;
- did not take place in secret; and
- was not by reason of the owner’s permission;
then the requirement that they use the land as if of right is satisfied. In that situation, it is unnecessary to enquire further as to whether it would be reasonable for the landowner to resist the residents’ use of the land. There is no 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. If confronted by such use over 20 years, it is reasonable to expect an owner to resist or restrict the use if he wishes to avoid the possibility of the residents registering the land as a town green. That did not happen in this case and the Supreme Court ordered that the land should be registered as a town green.
Lord Walker had great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the land, simply because they normally showed civility (or “deference”) towards members of the golf club who were out playing golf. Lord Walker said
“It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted with courtesy and common sense. But courteous and sensible though they were, 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” (as the golf club, ineffectually, tried to do).
Lord Hope stated that it would be wrong to assume that deference to the owner’s activities, even if it is overwhelming, is inconsistent with the assertion by the public to use of the land as of right for lawful sports and pastimes. It is simply attributable to an acceptance that where two or more rights co-exist over the same land, there may be occasions when they cannot practically be enjoyed simultaneously.
The Justices saw little danger, in normal circumstances, of registration of the land as a green leading to a sudden diversification or intensification of use by the residents, or diminution of the owner’s right to maintain his pre-registration level of use. Where the land has been used by both the residents and the owner over the pre-registration period, the breadth of the historical use will be, if not exactly equivalent to, at least approximate to that which will accrue after registration. Golfers and residents can co-exist without much friction even when the residents have established legal rights (as a result of registration).
Lord Rodger said, however, that this was not a real world situation. The residents only sought to register the land as a town green with a view to stopping a potential development on the land following cessation of the golf club’s use of the land, so the dog walkers and golfers will never actually have to co-exist on the land if it is registered as a town green.
The decision has important implications for developers proposing to develop open land that is or has been regularly used for recreation by a significant number of local residents. Even where the residents co-existed with or deferred to the owner’s use of the land, that does not mean that the residents cannot show they have used the land as of right for lawful sports and pastimes for a period of at least 20 years, in order to register the land as a town or village green. Owners of land are taken to be aware of the need to take appropriate preventive steps if they see a risk of circumstances arising in which an application could be made and their land become registered as a town or village green. If they fail to do so, they are treated as having acquiesced in the residents indulging in sports and pastimes on their land “as of right”.
Lord Rodger confessed that he viewed the outcome of the case with little enthusiasm.
“The idea that this land should be classified and registered as a village green, when it was really just an open space that formed part of a golf course, is unattractive, to say the least. It is hard to imagine that those who devised the registration system ever contemplated that it would produce such a result. But, given the established case law and given also that Parliament has not amended the law despite the known problems, the result is unavoidable.”
The Government proposes to consult, this Spring, over whether changes are needed to the existing framework for registration of new town and village greens. This initiative appears to have been prompted by a research report identifying particular concerns as to the use of such applications for registration in relation to land subject to proposals for residential development – which Lord Walker referred to as a “guerilla warfare” tactic against developers.
Warren Gordon is a lawyer in Olswang’s Real Estate Group.