Developers developing open spaces should be wary of a recent decision of the Supreme Court in Lewis, R (on the application of) v Redcar and Cleveland Borough Council & others (2010). The decision overturned earlier decisions of lower Courts and means that any open space, which has been used by the local inhabitants for activities such as dog walking and playing with their children, may (if used for the requisite period of time) be the subject of a successful village green application.

Section 15 of the Commons Act 2006 (CA 2006) provides that anyone can apply to register land as a town or village green where:

  • a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years"; and
  • the use of the land for that purpose (or the use as of right) ceased before 6 April 2007. (Time limits apply and the use may also be continuing but for the purposes of this update this will be ignored)

The Facts:

The common in question was owned by the council and was used as a golf course. The local inhabitants (including Mr Lewis) used the common for recreational purposes such as dog walking and parents playing with their children. The local inhabitants did not use the common if golf was in play and left if asked to do so by the golfers.

The council agreed that a developer could develop the land for mixed residential and leisure use for which the developer subsequently acquired planning permission. In 2007, Mr Lewis applied to register the common as a town and village green under section 15 of the CA 2006.

The lower Courts decided that the use by the local inhabitants had not been as of right since they deferred their use when golfers were playing golf. The council could not be expected to believe that the local inhabitants thought they were exercising a public right. This lack of belief amounted to permission on the council's part, which meant that the use was not as of right. As such the land could not be registered as village green.

The Supreme Court's Decision:

The deference demonstrated by the local inhabitants was a "perfectly natural behaviour". The local inhabitants had been courteous and sensible when using the common. A reasonably alert owner should have recognised that the use was an assertion of a right, which would lead to an established right unless the owner took action to stop it. Any deference was merely an acceptance that, where two or more rights co-exist over the same land, there may be occasions when they cannot, practically, both be enjoyed at the same time.

If any use of the land was without force, secrecy or permission then it would be as of right for the purposes of Section 15 of the Commons Act 2006.

The critical question, in each case, is the quality of user:

  • was the land used by a significant number of local inhabitants?
  • were they enjoying lawful recreational activities?
  • were they doing so openly and in such a way that a person entitled to do so, would do?

If the use had been for at least 20 years, to such an extent and in such a manner that it would reasonably be regarded as being an assertion of a public right, the council would have acquiesced in the use unless they could show that the use had not been without force, secrecy or permission.

In Summary:

Developers should seek assurances when buying land that it has not been used for purposes that may support a claim for registration as a green. In reality, the seller may have owned the land for a short period of time and be unaware of any such use prior to their period of ownership. However to limit the risk of an application for registration putting a proposed development in jeopardy, it is imperative that a developer and its advisers consider this case and the surrounding legislation regarding town and village greens.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.