A town or village green 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. Once registered, the land will be protected from development. This is because it is a criminal offence to do anything that disturbs or interferes with use or enjoyment of land as a green.
To succeed in registering a green, local inhabitants must prove that they have been using the land “as of right” for more than 20 years. User “as of right” means use without force or secrecy, and without the landowner’s permission.
Tricky issues arise where landowners and local inhabitants have put land to different uses. In R (on the application of Lewis) v Redcar and Cleveland Borough Council [2009] EWCA Civ 3; [2009] PLSCS 11, the Court of Appeal was asked to decide whether local inhabitants had been using a golf course “as of right” in circumstances where golfers had also been using the land to play golf. The trial judge ruled that the local inhabitants had always deferred to the golfers and, as a result, declined to order the council to register the land as a green. The applicants appealed, arguing that users had deferred to the 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.
The Court of Appeal decided that the proper approach was to ask how the golf club would have viewed the position. It would not be reasonable to have expected the club to resist recreational use by local inhabitants whose use did not interfere with the use of the land as a golf course. The court ruled that, by deferring to the golfers, recreational users had failed to make it clear to the landowner that they were asserting rights to use the land. Consequently, the Court of Appeal upheld the decision not to register the land as a green.
Their lordships explained that local inhabitants must, by their actions, demonstrate that they are asserting rights to use land. Where there are no competing uses, it would suffice if local inhabitants use the land openly, without force and without the landowner’s permission. In such circumstances, a reasonable landowner ought to realise that recreational users are asserting rights to use land.
Where different uses co-exist, the courts should ask what effect the landowner’s activities have had on the activities of local inhabitants. Recreational users who defer to the landowner’s activities are unlikely to make it obvious that they are asserting rights to use land. However, recreational users who have used land openly, without force, without the landowner’s permission, and without having been affected by the landowner’s activities, may succeed in applying to have land registered as a green. Consequently, landowners would be well-advised to act positively to prevent recreational users from acquiring rights that will stymie future development.
Allyson Colby is a property law consultant
