A town or village green (TVG) comprises land that is available for recreation. Anyone can apply to register land as a green if it has been used for lawful sports and pastimes for at least 20 years. The number of applications is increasing since, once registered, land will be protected from development. This is because it is a criminal offence to disturb or interfere with the use or enjoyment of land as a green.
The decision in R (on the application of Lewis) v Redcar and
It is common for landowners to erect prohibitory “keep out” signs, or possibly even permissive signs granting the public revocable permission to use the land for recreation, in an attempt to defeat potential applications to register land as a green. This is because applicants must prove that they have been using the land “as of right”. In other words, applicants must prove that they have used the land openly, without exercising force, and without having been given permission to do so.
Arguably, user in disregard of “keep out” signs is or may be “forcible”. However, the judge decided that the landowner’s warning notice was insufficiently clear to prevent the use of the land being “as of right” in this case. The notice did not equate to a “keep out” sign because instead of telling users to stop trespassing, it merely warned trespassers that they were in danger (presumably because they might be struck by golf balls). Consequently, the warning notice had not interrupted the use of the land for sports and pastimes and the TVG clock had kept on ticking.
However, the judge upheld the council’s decision not to register the land as a green on the ground that the local inhabitants had always deferred to the golfers. The applicants argued that users had deferred to golfers out of politeness and that it would have been dangerous to walk across the line of play when a ball was about to be struck. However, the judge decided that the reason for the deference was irrelevant. The question was: how would the golf club have viewed the position? It would not be reasonable to expect the club to resist recreational use by local inhabitants if their use of the land did not interfere with the use of the land as a golf course.
The judge granted the applicants permission to appeal against his decision and the case – the unhappy result of years of happy co-existence between users with different interests – now seems destined for a higher court.
Allyson Colby is a property law consultant
