Land can be registered as a green if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality have indulged “as of right” in lawful sports and pastimes on the land for at least 20 years. User “as of right” means that local residents have used the land openly, without exercising force, and without obtaining permission to do so.
Use that is carried out secret or by stealth does not qualify because it is unlikely to come to the attention of the landowner. Therefore, local residents must demonstrate that they have used land openly for the requisite period. However, what is the position if this triggers “a perpetual state of warfare” between the landowner and the users of the land?
Betterment Properties (
It is interesting to compare the judgment with the decision in McLaren v Kubiak [2007] EWHC 1065 (Ch); [2007] PLSCS 157, where the judge took the view that if local residents used the land without knowing that fencing had been demolished, it could be argued that their use was not “forcible”. In Betterment, however, there was sufficient evidence for the judge to decide that a reasonable user of the land would have known that the fences and hedges, which were there to prevent the public from accessing the land, had been broken down and that gaps had been created against the landowner’s wishes. Consequently, the judge ruled that the landowners had done everything, proportionately to the user, that they could to contest and to try to interrupt the user and decided that the land in question had been wrongly registered as a green.
The judge also had some interesting views on the legal remedies available in such circumstances. He accepted that landowners will not be entitled to issue possession proceedings unless they are actually ousted from possession, but thought that they may be able to take advantage of recent case law to obtain an injunction against persons unknown: see Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] EWHC 1205 (Ch); [2003] 1 WLR 1633. Landowners would be well advised to take heed; the judge suggested that, if physical steps to obstruct the user cease or become wholly ineffective and no legal proceedings are threatened or brought, it might become progressively more difficult to say that the continuing user was contentious.
The decision deals with a number of additional points that will interest practitioners. However, the news that will resonate throughout the property industry is that the court has reversed a registration almost 10 years after land was originally registered as a green.
Allyson Colby is a property law consultant
