On 18 January 2010, this two day hearing will begin. The dispute in question relates to whether Redcar and Cleveland Borough Council (the “Council”) were wrong to decide that the land known as Coatham Common in Redcar (the “Common”) did not constitute a town green under the Commons Act 2006 (the “2006 Act”).
In 2005, the appellant (the “Appellant”) and three other local residents made an application for the Common to be registered as a town green under the Commons Registration Act 1965 (the “1965 Act”). Section 22(1) of the 1965 Act (as amended) provides that land will be common land“if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right” (emphasis added).
The Appellant’s claim was that the Common had been used for informal recreation for more than 20 years, and as such should be registered as a town green. A public inquiry was held to investigate whether the Common did constitute a town green, and Mr Vivian Chapman QC was commissioned to oversee the inquiry and to produce a report and recommendation for the Council.
Mr Chapman’s report was lengthy and thorough, and his recommendation was that the Common should not be registered as a town green for two reasons. Firstly because of permissive signs that had been put up on the Common in 1998 and 2003, and secondly because until 2002, use of the Common by local residents was secondary to the use of the land by the Cleveland Golf Club which had leased the Common from the Council.
Mr Chapman concluded that because the signs had been erected, the use of the Common by local residents was not “as of right” within the meaning of section 22(1) of the 1965 Act, and because the use of the Common by the local residents was secondary to use of the land by the Cleveland Golf Club, their right to use the common had been deferred to the Club. The Council followed the recommendation of Mr Chapman and rejected the application.
In 2007, a second application was made by the Appellant and the others for the registration of the Common as a town green under the 2006 Act (section 15 of which is materially the same as section 22(1) of the 1965 Act). Mr Chapman was once again asked to advise the council, and his advice was that there was nothing in the second application that required him to reconsider the recommendation he had given in his first report. Following this, the Council once again decided to reject the application.
The Appellant then brought judicial review proceedings to challenge this decision. In the judicial review application, Sullivan J held that the challenge to the first of Mr Chapman’s reasons (i.e. that the signs being erected prevented the local residents using the Common as of right) was upheld, but that the challenge to his second reason was not. As such, the application for judicial review was dismissed.
The Appellant appealed this decision, arguing that the notion of “deference” was an unwarranted judicial gloss on the meaning of that expression, and claiming that the use of the Common by local residents was “as of right”. Dyson, Laws and Rix LJs heard the appeal, and held the following:
1. When determining whether local inhabitants are using land “as of right” within the meaning of the 2006 Act, it is necessary for the landowner to be given the outward impression that those local inhabitants are asserting a right over the land. If the local inhabitants always defer to the landowner when his use of the land interfered with theirs, it is unlikely that they had successfully asserted such a right. Whether or not land is used “as of right” depends on the degree of deference. Dyson LJ referred to the fact that Mr Chapman had found that in this case, the local inhabitants “overwhelmingly deferred” to the golfers.
2. There is no scope for conferring a qualified or limited use of the land. This did not mean that use by the owner precluded the local inhabitants from claiming they were using the land “as of right”, but there had to be examples of the owner’s use of the land being secondary to the inhabitants’ as well as the other way around. In this case, the local inhabitants’ right to use the land was nearly always secondary to the owner’s.
3. There was no basis for challenging the decision made by the Council in this case on public law grounds. Dyson LJ said that it could not realistically be submitted that Mr Chapman “failed to have regard to relevant factors or took account of irrelevant factors”, and nor could it be submitted “that the decision was perverse”.
The application was therefore dismissed. The appeal is due to be heard by Lord Hope, Lord Rodger, Lord Walker, Lord Brown and Lord Kerr.