Just what is 'as of right'?

The Supreme Court recently ruled against Redcar and Cleveland Borough Council over a high-profile village green registration application, which has prevented a major development scheme from going ahead. The case raises important issues for local authority landowners, according to Charles George QC, Jeremy Pike and Cain Ormondroyd.

On 3 March 2010 the Supreme Court handed down its decision in the important and controversial case of R (Kevin Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11. The successful appellant, Mr Kevin Lewis, was one of five local residents who had been campaigning to prevent development on part of Coatham Common on the south side of the Tees estuary, land owned by the council. They applied to the council to register the land as a new town or village green under the Commons Act 2006, but their application had been refused on the advice of an independent Inspector. They challenged the council’s decision but their challenge was dismissed by first the High Court and then the Court of Appeal.

Practical Significance Of The Case

1. A substantial area of land ­– owned by the local authority, and intended to be the subject of a major development scheme – has become a village green on which local inhabitants now have an almost indefeasible right to engage in a wide variety of recreational activities for all times.
2. The land can no longer be used as part of a mixed development for residential and leisure purposes for which planning permission was granted in 2007, because this would be incompatible with the rights of the local inhabitants and would constitute a criminal offence.
3. This is the first time that a new village green has been registered when, for almost all the 20-year prescription period, the owner (in this case through the Golf Club) had been using the land for its own purpose (in this case as the first and eighteenth holes of the golf course and as a practice ground).
4. The Supreme Court held that if local inhabitants had been using the land without force or without objection by the landowner, openly, and without permission from the landowner, then – contrary to the decision of the Court of Appeal ([2009] 1 WLR 1461) – there was no additional requirement that by their conduct it should have appeared to a reasonable landowner that the public were asserting a right to use the land for lawful sports and pastimes.
5. The fact that a landowner may put its land to a particular use and that use is not interrupted or interfered with by local inhabitants, does not mean that their use cannot be said to be ‘as of right’ for the purposes of either village greens registration, or acquisition of rights of way.
6. The court explained that if the land was still in use as part of a golf course, then the Golf Club’s activities could have continued, because both golfers and local inhabitants would, and would have to, continue to act civilly to one another and respect each others’ rights. The court recognised that the recreational rights of local inhabitants can co-exist with many activities of landowners.
7. In preparation for re-development, the land ceased to be used for playing golf in 2003. It remains to be decided what if any use the council will seek to make of the land, but whatever it does, the council will have to accommodate the lawful recreations of local inhabitants.

Summary

Mr Lewis and fellow residents of Coatham Redcar had applied to register an area of open land, used as part of a golf club, as a new town or village green. The land, which belonged to the local council, had been used by local residents for recreation for many years, but in 2003 it became the subject of proposals for major development, for which the council granted itself a controversial planning permission, which was eventually upheld ([2008] EWCA Civ 746).

The local residents had, according to the Inspector who held a public inquiry to consider the village green application, recreated in significant number on the land for at least 20 years, and had done so openly, without force, and without permission. The application was however refused because the residents, who had behaved courteously and sensibly in not interfering with golfers enjoying their game, were said to have “deferred” to the golfers in their behaviour and therefore had not used the land ‘as of right’.

The High Court and the Court of Appeal upheld the decision of the council (as registration authority) not to register the land. The decision of the Court of Appeal was particularly helpful to landowners. It held that the requirement of user ‘as of right’ – a concept which is central to village greens law but also to public and private rights of way – meant not only that user had to be open, without force and without permission (‘nec vi, nec clam, nec precario’) but also that such user had to bring home to a reasonable landowner that users were asserting a right to use the land.

As a consequence, the principal issue to be determined by the Supreme Court was this: where land has been used not by force, not secretly and not by permission, for 20 years by local inhabitants, is it necessary to ask the further question whether the use appeared at all times to be as if of right? The question turned on whether the fact, whatever the explanation, that local inhabitants did not prevent the playing of golf by walking in front of the ball (or seeking to prevent the playing of strokes by golfers), precluded the use from being as if of right.

Decision of the Supreme Court

The Supreme Court decided that Mr Lewis' appeal should be allowed. The council was wrong, the court said, to have found that the local residents' courteous behaviour, and their reluctance to interfere with the playing of golf, meant that they were not asserting the necessary 'right' to use the land for recreation themselves. The court ordered the council to register the land as a new town or village green.

Lord Walker of Gestingthorpe said: “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 (as the golf club tried to do, ineffectually, with the notices erected in 1998).” (emphasis added)

Lord Walker also considered the question of how the landowner and the local residents might get on with each other if the land was registered. He said: “I am sceptical about the notion that the local residents’ attitude towards the golfers, if the green were to be registered in circumstances where it was still being used by the golf club, would suddenly turn from friendly civility to vindictive triumphalism. Many of them must have friends or neighbours who are members of the golf club; some are even members themselves.

“Disparaging references are sometimes made to the ‘village green industry’ and to applications for registration being used as a weapon of guerrilla warfare against development of open land. ...However, in the Commons Act 2006 Parliament has made it easier, rather than more difficult, to register a green. There is also the prospect ... of further legislation…. Even without such regulation, conflicts over competing uses (whether as between the owner and the local residents, or between different interest groups among the local residents) are capable of resolution by the “constant refrain in the law of [property rights] that ‘between neighbours there must be give as well as take’”.

Conclusion

Acquisition of village green rights, and rights of way, depends in part upon the requirement that use by the public was ‘as of right’. In its decision the Supreme Court held that use could be ‘as of right’ even where members of the public stood back from, or ‘deferred’ to, the landowner’s uses, and did not seek to interfere with such uses.

This is of considerable importance for local authorities who, for instance, do not prevent members of the public from going onto land such as school playing fields. Where a landowner is aware of significant use of its land by the public, if it wishes to avoid the possibility that village green registration may result, it is not enough for the landowner to say that the public never interfered with its activities. A local authority must take positive steps to make clear that any public use is not ‘as of right’ because it has been either expressly permitted, or expressly prohibited.

Charles George QC, Jeremy Pike and Cain Ormondroyd are barristers at Francis Taylor Building (www.ftb.eu.com)