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

Recreational use qualifies as use as of right for town or village green registration only if it is without force, secrecy or permission and objectively conveys an assertion of right to the reasonable landowner. Where the owner and inhabitants make competing uses of the land, the manner and extent of their activities require a factual assessment. Deference and interruption are relevant evidence, rather than independent legal principles. Extensive recreational use may fail the test where inhabitants overwhelmingly accommodate the owner's competing activities. Registration confers general recreational rights, while permitting compatible use by the owner through mutual give and take. A registration authority's factual assessment is reviewable on ordinary public law grounds.

Kevin Lewis and other local residents sought registration of part of Coatham Common as a town green. Redcar and Cleveland Borough Council, the registration authority, had leased the land to Cleveland Golf Club until 2002. Persimmon Homes (Teesside) Limited was the second respondent. The land had been extensively used both for golf and for informal recreation by local inhabitants.

An inspector, Mr Vivian Chapman QC, recommended refusal of the residents' first application under the Commons Registration Act 1965. His reasons included notices affecting recreational use and the inhabitants' overwhelming deference to golfers. A second application under the Commons Act 2006 was also refused. Lewis sought judicial review of that refusal.

Sullivan J upheld the challenge to the inspector's reasoning concerning notices but rejected the challenge concerning deference. He dismissed the judicial review application and granted permission to appeal. The notice issue was not reopened on appeal. The central questions were whether accommodating the golfers could prevent otherwise qualifying recreational use from being as of right, and whether the council's assessment could be challenged on public law grounds.

1. The appeal was unanimously dismissed. Dyson LJ's reasoning was expressly adopted by Rix LJ, and Laws LJ also agreed. The council's refusal to register the land disclosed no public law error.

2. Under section 15 of the Commons Act 2006, inhabitants' use must convey to the reasonable landowner the outward appearance that a right is being asserted. Use without force, secrecy or permission was necessary, but those conditions alone did not resolve every case. Sunningwell supplied the objective approach. Beresford concerned an implied licence and did not dispense with the requirement that conduct should communicate an assertion of right.

3. Where the owner and inhabitants made competing uses, the inquiry depended on the manner and extent of the inhabitants' activities. Neither interruption nor deference constituted an independent statutory principle. Both could bear on the appearance of an asserted right. Recreational use was inherently intermittent, so gaps alone did not defeat registration. The significance of accommodating the owner's activities remained a question of fact and degree.

4. The second strand of Laing Homes, concerning the appearance of deference to the owner's use, was correct. It was consistent with Lord Hoffmann's observations in Oxfordshire County Council v Oxford City Council, although those observations were obiter. Competing activities did not automatically defeat registration. Mutual give and take could be consistent with use as of right, but overwhelming accommodation of the owner's activities could convey an acknowledgement that the inhabitants lacked a right.

5. Registration conferred an unqualified right to use the land generally for sports and pastimes. It did not confer rights limited to the particular qualifying activities or subordinated to the owner's competing use. The owner nevertheless retained compatible uses, requiring give and take on both sides. Rix LJ added that Fitch v Fitch maintained compatibility between established rights; it did not resolve an antecedent incompatibility between competing uses.

6. The inhabitants' use had been extensive, frequent and without force, secrecy or permission for more than 20 years. Nevertheless, the inspector found that they overwhelmingly deferred to the golfers. That finding was reasonably open on the evidence. Unlike an ordinary appeal concerning factual inferences, judicial review permitted intervention on usual public law grounds, including irrationality. The inspector had addressed relevant considerations, and the decision was not perverse. The dismissal of the judicial review application therefore stood.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 3 , unanimously dismissed the appeal and upheld the dismissal of the judicial review application.
2. High Court, Queen's Bench Division: Sullivan J upheld the challenge concerning notices but rejected the challenge concerning deference to golfing use. He dismissed the judicial review application and granted permission to appeal. No citation for his judgment is stated.
3. Registration authority: Redcar and Cleveland Borough Council refused the second registration application on 19 October 2007, following the inspector's recommendation. An earlier application under the Commons Registration Act 1965 had also been refused.