Case Alert - planning and rating

R (on the application of Lewis) v Redcar and Cleveland Borough Council and another [2010] UKSC 11

This recent case in the Supreme Court examined the meaning of the phrase “as of right” when applied in the context of section 15(4) of the Commons Act 2006 in an application for the registration of a town or village green.   

  • Local residents applied for registration of an area of open land owned by the local authority as a town or village green under s15(4)a of the Commons Act 2006 on the basis that 'a significant number of inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years'.
  • Part of the area over which the residents sought the village green designation formed part of a golf course. The residents were in the habit of frequently crossing the fairway, but both golfers and residents were courteous in their interaction with the other group. 
  • The inspector, at first instance, found that the local people overwhelmingly deferred to the golfing use and the user was therefore not “of right”.
  • The local authority accepted the inspector’s recommendation and rejected the application. The residents applied for judicial review but they were unsuccessful. The judge dismissed the application on the basis that the local residents' deference to the golfers had prevented their user being 'as of right'.  The residents appealed to the Court of Appeal but the appeal was dismissed and they appealed to the Supreme Court.
  • The Supreme Court held that the correct test to be used for the question as to whether user was 'as of right' was sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor stealth, nor permission) and that the question was how the matter would have appeared to the owner of the land.
  • The Court found that it was difficult to see how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land simply because they normally showed civility—or deference—toward members of the golf club who were out playing golf. The fact remained that the residents had been regularly, in large numbers, crossing the fairways as well as walking on the rough. A reasonably alert owner could not have failed to recognise that that user was the assertion of a right and would mature into an established right unless the owner took action to stop it.

For further information on this or any real estate litigation issue, please contact Vanessa Joll by emailing Vanessa or by calling her on 08450 990045, or speak to your usual contact in the Real Estate Team.