Lewis, R (on the application of) v Persimmon Homes Plc

For registration of a town or village green, recreational use must be as of right. A notice ends such use only if, read in context and as a matter of common sense, it clearly communicates that the landowner does not acquiesce in continued recreational use. A warning that users are trespassers and may be injured is not necessarily prohibitory.

The relevant question where landowner and recreational uses coexist is how the users’ conduct would reasonably have appeared to the landowner. Subjective motives, including courtesy and safety, are irrelevant. Where recreational users overwhelmingly defer to extensive use by the landowner, their conduct may fail to indicate the assertion of a public right.

The claimant sought judicial review of the defendant local authority’s refusal to register part of Coatham Common as a town or village green under section 15 of the Commons Act 2006. The land had previously been used as a golf course and was also used by local inhabitants for informal recreation.

The authority accepted an inspector’s advice that the application failed because notices erected in 1998 interrupted user as of right and because recreational users had overwhelmingly deferred to the golf club’s extensive use. The claimant challenged both conclusions, and later sought to raise an alternative case concerning smaller areas of land. The central issues were the legal effect of the notices and the proper approach to deference between competing uses.

1. Outcome. Permission to apply for judicial review was granted, but the substantive application was dismissed. The claimant succeeded on the notices ground but failed on the deference ground. The claimant was ordered, subject to the applicable legal aid order, to pay two-thirds of the defendant’s assessed costs.
2. Notices. The Commons Act 2006 contains no equivalent to section 31 of the Highways Act 1980. The effect of a notice therefore depends on whether subsequent use became contentious or forceful. A notice must be construed in its factual context and in a common-sense way. The words “Cleveland Golf Club Warning It is dangerous to trespass on the golf course” described users as trespassers but did not tell them to stop. The evidence that the notices were repeatedly painted out and abandoned did not show that they had ended recreational use or made non-acquiescence sufficiently clear. The first ground therefore succeeded.
3. Deference. The relevant inquiry is how the recreational users’ conduct would reasonably have appeared to the landowner. The users’ subjective beliefs and motives are irrelevant. Low-level activity by a landowner may coexist in practice with qualifying recreational use, but the golf club’s use here was extensive: the land included the clubhouse, first and eighteenth holes and a practice ground, and was used nearly every day by a popular club.
4. The inspector was entitled to find that local users overwhelmingly deferred to golfing use. That finding was supported by the absence of evidence that recreational users materially interfered with the golf course and by their practice of waiting for play to pass. Whether their deference arose from courtesy or concern for safety did not alter how their conduct appeared to the landowner. The second ground therefore failed.
5. The proposed argument that smaller areas should be registered was refused as a late amendment. Although the registration authority had power to register a different area, it was not obliged to reformulate the applicant’s case. Raising the point at that stage would have been unfair, particularly because the issue had not been put to the inspector or the authority.
6. The claim was dismissed. Delay constituted undue delay under section 21(6) of the Supreme Court Act 1981, but it would not, by itself, have justified refusing relief had both substantive grounds succeeded.

This was a first-instance judicial review decision. The judgment records that an earlier planning decision concerning the development project had been quashed by Jackson J and that the Court of Appeal later allowed the interested party’s appeal in [2008] EWCA Civ 746. That litigation was distinct from the present claim.