Lewis, R (on the application of) v Redcar and Cleveland Borough Council & Anor

For registration under section 15 of the Commons Act 2006, use “as of right” requires conduct which would appear to a reasonable landowner to assert a right. The formula nec vi, nec clam, nec precario is necessary but does not by itself answer that question. There is no free-standing principle of “interruption” or “deference”. These are aspects of the manner and extent of use, and the issue is one of fact and degree. Where local users adjust their conduct to accommodate competing activities, their conduct may appear to acknowledge that they have no right. Intermittent recreation is not inherently insufficient where there is no competing use. On judicial review, the fact-finder’s assessment is challengeable only on ordinary public law grounds.

The appellant challenged the Council’s refusal to register part of Coatham Common as a town green. An inspector had rejected an earlier application under the Commons Registration Act 1965, finding that local recreational use deferred to the extensive use of the land by a golf club. A later application under the Commons Act 2006 was rejected on the same ground. Sullivan J upheld the challenge to one earlier reason but rejected the challenge to the deference reasoning and dismissed the judicial review application. The appeal concerned whether the local inhabitants’ use was “as of right” despite the competing golf use, and the proper approach to deference, interruption and judicial review of the Council’s decision.

Disposition

The appeal was dismissed. Laws LJ and Rix LJ agreed with the judgment of Dyson LJ.

1. Meaning of “as of right”. Under section 15 of the Commons Act 2006, use must have the outward appearance, to a reasonable landowner, of an assertion and claim of right. The requirement is objective. Nec vi, nec clam, nec precario is necessary, but it is not sufficient without use capable of bringing the asserted right home to the reasonable owner. This approach was consistent with Sunningwell ([2000] 1 AC 335), Beresford ([2003] UKHL 60; [2004] 1 AC 889), and Hollins v Verney ((1884) 13 QBD 304).
2. Competing uses. There was no free-standing “principle of interruption” or “principle of deference”. Those concepts describe aspects of the amount and manner of use. Where the owner and local inhabitants make competing uses, the fact-finder must assess whether local users adjusted their conduct to accommodate the owner. If they consistently defer whenever conflict arises, their conduct may appear not to assert any right. The issue is fact and degree. Intermittent recreation is not fatal where there is no competing use.
3. Effect of registration. The reasoning in Oxfordshire County Council v Oxford City Council ([2006] UKHL 25; [2006] 2 AC 674) showed that registration confers an unqualified general right to use the land for sports and pastimes. It was therefore incorrect to analyse the prospective right as qualified by the owner’s competing use. The prior question was whether use had been “as of right”. The doctrine of reasonable give and take from Fitch v Fitch ((1797) 2 Esp 543) applied only where the relevant rights were compatible; it did not resolve an a priori conflict between incompatible uses.
4. Judicial review. The Council’s decision, based on the inspector’s findings, could be challenged only on ordinary public law grounds, including Wednesbury unreasonableness, failure to consider relevant matters or reliance on irrelevant matters. The assessment was one of fact and degree. The inspector’s conclusion that local inhabitants had “overwhelmingly deferred” to the golfers was reasonably open to him and was not perverse.
5. The first reason relied on against the earlier application was not challenged. The Court therefore did not revisit the Victorian statutory argument, on which Sullivan J had not relied after the criticism in Oxfordshire.

• High Court of Justice, Queen’s Bench Division: Sullivan J upheld the challenge to the inspector’s first reason but rejected the challenge to the deference reasoning and dismissed the application for judicial review.
• Court of Appeal (Civil Division): The appeal against that dismissal was dismissed. The first reason was not challenged, so the appeal concerned the second reason.