R (on the application of Lewis) v Redcar and Cleveland Borough Council and another

For the registration of a town or village green, use “as of right” means use openly, without force and without the landowner’s permission. There is no additional requirement that the inhabitants’ conduct must appear to a reasonable landowner to assert a legal right.

Courtesy towards a landowner or occupier’s concurrent activities does not prevent recreational use from being as of right. It may instead demonstrate that the two uses can coexist. After registration, the inhabitants may generally undertake lawful sports and pastimes, while a pre-existing compatible use by the owner may continue. Both sides must exercise their rights with reasonable give and take.

Local inhabitants applied under section 15(4) of the Commons Act 2006 to register coastal land formerly used as part of a golf course. An inspector found that inhabitants had used the land extensively for informal recreation for the requisite period. He nevertheless concluded that their use was not “as of right” because they deferred to golfers when play was in progress.

The council rejected the application. Sullivan J dismissed a claim for judicial review: [2008] EWHC 1813 (Admin). The Court of Appeal unanimously dismissed the appeal: [2009] EWCA Civ 3; [2009] 1 WLR 1461. The central issue before the Supreme Court was whether courteous accommodation of the golfers prevented the inhabitants’ recreational use from being “as of right”.

1. Disposition. The Supreme Court unanimously allowed the appeal. Lord Walker, Lord Hope, Lord Rodger, Lord Brown and Lord Kerr agreed that the inspector had misdirected himself. The council was ordered to register the disputed land as a town green under the applicable provisions.

2. The statutory test. Under section 15 of the Commons Act 2006, use “as of right” bears its established prescriptive meaning: nec vi, nec clam, nec precario. The use must be without force, open and without the owner’s permission. Per Lord Hope, once qualifying use by a significant number of inhabitants is established and none of those three vitiating circumstances applies, there is no further inquiry into whether a reasonable landowner would have perceived an assertion of right. Lord Walker, Lord Brown and Lord Kerr reached the same conclusion.

3. Deference and coexistence. The inhabitants’ willingness to wait while golfers played, or to move after a warning shout, was ordinary courtesy and common sense. A reasonably alert owner would still have recognised the extensive recreational use as an assertion of a public right. Deference to an owner’s concurrent activity may show that two uses can coexist; it is not inherently inconsistent with use as of right. The contrary approach in R (Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin) was disapproved.

4. Rights after registration. Registration permits the inhabitants to use the land generally for lawful sports and pastimes; they are not confined to the precise activities undertaken during the qualifying period. It does not necessarily extinguish a compatible use which the owner or occupier exercised throughout that period. Where concurrent uses are feasible, they continue subject to reasonable give and take. Lord Hope treated the historical use as setting the general measure of the relationship after registration. Lord Brown similarly regarded registration as entrenching the inhabitants’ existing recreational entitlement without subordinating the owner’s continuing compatible use.

5. Application. The inhabitants had used the land extensively, openly, peaceably and without permission. Nothing in their ordinary accommodation of golfers was inconsistent with use as of right. Lord Kerr added that an objectively shared understanding that no right was being asserted could affect the quality of use, but mere civility did not establish such an understanding here.

• United Kingdom Supreme Court: In [2010] UKSC 11, unanimously allowed the appeal, set aside the decisions below and ordered registration of the disputed land as a town green.
• Court of Appeal: Laws, Rix and Dyson LJJ unanimously dismissed the appeal in [2009] EWCA Civ 3; [2009] 1 WLR 1461.
• High Court, Administrative Court: Sullivan J granted permission at a rolled-up hearing but dismissed the substantive judicial review claim in [2008] EWHC 1813 (Admin).
• Registration authority: Redcar and Cleveland Borough Council accepted the inspector’s advice and rejected the registration application.