R (LEWIS) V REDCAR AND CLEVELAND BOROUGH COUNCIL AND PERSIMMON HOMES (TEESSIDE) LTD:
A REMARKABLE SUPREME COURT VICTORY FOR LOCAL RESIDENTS

On 3 March 2010 the Supreme Court handed down its decision in the important and controversial case of Mr Kevin Lewis [2010] UKSC 11.

Charles George QC, Jeremy Pike and Cain Ormondroyd appeared for Mr Lewis, instructed by Irwin Mitchell LLP.

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 [2008] EWHC 1813 (Admin) and the Court of Appeal [2009] 1 WLR 1461 upheld the decision of the registration authority, Redcar and Cleveland Borough Council (which was also the owner of the land), not to register it. 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.

The Supreme Court rejected the Court of Appeal's approach to ‘as of right', and decided that Mr Lewis' appeal should be allowed, with the result that the land will now be registered as a town or village green. 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. Lord Walker of Gestingthorpe, with whom the other Justices agreed, 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

The judgment of Lord Hope endorsed the suggestion by Philip Petchey (of Francis Taylor Building), in his article in (2009) Rights of Way Law Review 139, that if after registration of land as a green local inhabitants were to exercise their right to recreate in a way which would cause legitimate objection by a landowner, an injunction could be obtained by the landowner to restrain such unreasonable use of the land.

The Supreme Court distinguished, and criticised certain aspects of, R (Laing Homes) v Buckinghamshire County Council [2004] 1 P&CR 573, a case in which Charles George QC and Jeremy Pike appeared for the successful landowner. Lord Walker's conclusion on Laing Homes was "That is not to say that Laing Homes was wrongly decided, although I see it as finely-balanced".

This decision is significant for a number of reasons:

1. 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) has 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). The implications for farmers, schools and local authorities (amongst others) are considerable.
2. The Supreme 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.
3. Since in 2003 the land ceased to be used for playing golf, in preparation for re-development, it remains to be decided what, if any, use the Council as owner will seek to make of the land. Whatever it does, the Council will have to accommodate the lawful recreations of local inhabitants.
4. The case is an unusual example of how the law will safeguard recreational rights when they have been exercised for 20 years or more.  The successful application was made under the Commons Act 2006, legislation which shows the determination of Parliament that local people should be able to establish recreational rights on open land by long use of it for recreation.
5. This is the first occasion the Supreme Court has considered a village green case, but it is the fourth time in a decade that the highest court in the land has reversed decisions of the Court of Appeal which would have had the effect of curtailing the creation of new village greens.