VILLAGE GREENS - NOTICES AND DEFERENCE

The decision of Sullivan J in R (Lewis) v Redcar & Cleveland BC [2008] EWHC 1813 (Admin) (18 July 2008) (where a challenge to the Registration Authority's refusal to register a new village green over land which had formerly been part of a golf course failed) is of interest in four respects:

(1) A notice worded "Cleveland Golf Club Warning It is dangerous to trespass on the golf course", which had been disregarded by local inhabitants, was held insufficient to render the subsequent use of the land by local inhabitants "by force". "Given the ambiguity and the wording of the notices...no landowner in the position of the defendant could reasonably have concluded that by erecting those notices in 1998 it had made sufficiently clear that it was not acquiescing in the continued use of the land for recreational purposes by local users. For these reasons, the claimant's first ground of challenge succeeds" (para 23).

(2) Applying Sullivan J's own decision in R (Laing Homes) v Buckinghamshire County Council, the Inspector's decision was upheld that, by allowing golfers to play their strokes, the local inhabitants had "deferred to golfing use", so as to render the local inhabitants' use not "as of right", because it lacked the objective appearance of being "as of right". "The question is: how would the matter have appeared to the golf club?...What matters to the landowner is the fact of deference to his use of the land, not the reasons for it which might differ from individual to individual" (para 41). The claimant had argued that would be stupid and dangerous to walk across the line of play when a ball was about to be struck and that most people would naturally defer to those using the land for other recreational pursuits, including golf, as a matter of common courtesy (para 40).

(3) Despite finding that the application had not been made promptly, so that there had been undue delay, the judge held (paras 47 and 48) that if he had found for the claimant on both grounds of challenge, he would not have considered that either the extent of the delay or the detriment to good administration and/or the prejudice to the rights of the intererested party [Persimmon Homes PLC] and the defendant as landowner were so serious as to warrant a refusal to grant relief on delay grounds alone. "If the defendant's conclusions in respect of 'notices' and 'deference'...had been legally flawed, any delay and its consequences would have had to be particularly egregious to justify a refusal to grant relief. There would have been a strong public interest in correcting, however belatedly, errors of such consequence".

(4) Unusually, Sullivan J granted permission to appeal to the Court of Appeal on the ground (para 72) that "the ambit of the deference principle is something which is not determined, and therefore there is a real prospect of success in terms of the possibility of you being able to persuade the Court of Appeal to determine it differently". The Court of Appeal has thus been offered the opportunity to review the related principle of "give and take" between landowners and local inhabitants, founded on the decision in Fitch v Fitch 2 Esp. 543, and approved by Lord Hoffmann in the Oxfordshire case.

The legally-aided claimant was represented by Charles George QC and Jeremy Pike, instructed by Irwin Mitchell.