R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11; [2010] PLSCS 65 concerned land that had been used a golf course and that had become the subject of an application for registration as a green.
The question for the Supreme Court was whether local residents who have used land for recreational purposes “as of right” (that is, openly, without force and without having been given permission to do so) for more than 20 years must also demonstrate that a reasonable landowner would have realised that they were asserting that right, in order to succeed in registering the land as a green.
The Court of Appeal upheld the council’s refusal to register the land as a green. Its decision was swayed by arguments that: (i) registration authorities are not permitted to register specific recreational rights; (ii) registration would seem to confer unqualified rights to use land generally for sports and pastimes; and (iii) a mismatch could result between what residents have done to acquire recreational rights over land and what they might be in a position to do once land has been registered as a green. The court seized on the fact that the residents had deferred overwhelmingly to the golfers and ruled that, in so doing , they had failed to convey the impression that they were asserting rights to use the land.
The Supreme Court took a different view. It ruled that local residents need only demonstrate that they had used the land “as of right” for the requisite period and ordered the council to register the land as a green. The decision will pose serious problems for planned redevelopment in the vicinity.
Lord Walker saw little danger, in normal circumstances, of the registration of a green leading to a sudden diversification or intensification of use by local residents. He took the view that conflicts between competing uses could be resolved by “give and take” on both sides. Consequently, he did not believe that registration would have prevented the land from being used as a golf course had the golf club remained in occupation of the land. The other members of the court agreed, although Lord Rodger thought it unattractive that open space forming part of a golf course should be classified and registered as a green.
The decision highlights the difficulties that arise in such cases. It confirms that landowners must take steps to restrict recreational use of their land to prevent applications for registration under the Commons Act 2006. Registration as a green will entrench the rights of local residents and will prevent development on the land.
The government plans to consult on whether the existing legal framework will need to be revised: Hansard (HL) Written Questions, 15 January 2010, Qs 961-964. The initiative appears to have been prompted by a report to Defra, which identified concerns over the way the registration system is used when land is affected by proposals for development. It is hard to disagree with Lord Hope’s suggestion that Defra should take the opportunity to consider the consequences of registration as well as how the registration system is working.
Allyson Colby is a property law consultant