Land can be registered as a green if a significant number of the local inhabitants have indulged as of right in lawful sports and pastimes on the land for at least 20 years. Following a registration, land in question cannot be developed because it any interference with its use or enjoyment as a green would constitute a criminal offence.
User “as of right” means that local inhabitants must have used the land openly, without exercising force and without obtaining permission to do so; use by force does not necessarily mean physical force.
Contentious user will also deprive the use of the character that is required to register land as a green. Landowners can render use contentious by erecting “keep out” signs. However, the wording of such notices must be clear. In R (on the application of Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin); [2010] 14 EG 108 (CS), the court considered the effect of notices that stated “No Public Right of Way”.
The inspector appointed to consider the application to register the land as a green referred to R (on the application of Lewis) v Redcar and
The inspector took a similar view of the notices erected by the health authority in Oxfordshire. He decided that the notices were situated beside and were clearly directed at footpaths that crossed the land and could not be interpreted as prohibiting recreational use of the land as a whole. Consequently, he recommended that the land be registered as a green.
The High Court rejected an application for judicial review of the decision. The judge ruled that it was important to ask what the notices conveyed to users. If users knew or ought to have known that the landowner objected to their use of the land, the notices would render their use contentious. In this case, objection to one use did not entail objection to another.
The judge also held that notices must not be read in a legalistic way but that their wording and effect must be examined in context. Importantly, evidence as to what a landowner subjectively intended to achieve is irrelevant unless, for example, its intention has been communicated to users or their representatives so that it was more than a privately expressed view or desire.
Interestingly, in the event of an appeal, counsel for the local inhabitants reserved the right to argue that notices that users disregarded are ineffective and also that signs denying the existence of public rights of way cannot render recreational use contentious. We may not have have heard the last of this case yet.
Allyson Colby is a property law consultant
