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

Town and village greens – Registration – Section 15 of Commons Act 2006 – Use as of right – Application to register part of golf course as town or village green — Defendants refusing application – Whether notices erected by defendants preventing use from being as of right – Whether recreational users “deferring” to golf club – Claim dismissedThe claimant lived in the area for which the defendant council were the commons registration authority. In 2007, the defendants refused an application, under section 15 of the Commons Act 2006, to register land that they their owned, and which formed part of a golf course, as a town or village green. Their decision adopted the recommendation of their inspector, who considered that the applicant could not prove the necessary period of 20 years’ use as of right by local inhabitants for sports and pastimes, either immediately prior to the date of the application, within section 15(2), or interrupted only after the commencement of section 15, within section 15(3). The inspector found that signs erected by the defendants in 1998, which read “Warning: It is dangerous to trespass on the golf course”, were prohibitory in nature such that subsequent recreational use was not as of right but by force, and that the use had become permissive in 2003 when notices permitting such use were erected in their place. He further found that the recreational use by local inhabitants overwhelmingly deferred to use by the local golf club, which made extensive use of the course almost every day; walkers and others would, for example, wait for golfers to complete a hole before walking past it.The claimant applied for judicial review of the decision to refuse registration. He contended that: (i) the 1998 notices were not prohibitory in nature but were merely warnings; and (ii) the appropriate question was not whether recreational users “deferred” to the landowners’ use, but whether their conduct was such that it would appear to a reasonably vigilant landowner that they were asserting a right; recreational users “deferred” to golfers only out of politeness and for reasons of safety and this was not inconsistent with the assertion of a right. The claimant’s application for permission and the substantive hearing were heard together.Held: Permission was granted but the claim was dismissed. (1) In considering the nature of a notice, the court should consider not only the wording but also the response by recipients as showing how that wording was understood. The notices erected by the defendants in 1998 were ambiguous and were not prohibitory in nature. They indicated that the defendants were acquiescing in the recreational use but that this was at the users’ own risk and in the knowledge of potential injury by a golf ball. The evidence suggested that that was how the local inhabitants had understood the signs; they did not think that they were being told to keep off the land, only to be careful. There was no evidence to indicate that the 1998 notices had had any practical effect. They had not been effective in “seeing off” the recreational use: R (on the application of Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin); [2004] 1 EGLR 85 and R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 EGLR 94 considered.(2) However, on the facts found by the inspector, the use by local inhabitants had not been as of right. The question was whether a landowner would reasonably have inferred that a right was being asserted. There was no evidence that the use of the golf course by the golf club was being inhibited by the recreational users in a way that would have caused the landowners to infer the assertion of a right. Although low-level use by a landowner was not, in practice, inconsistent with use as of right by local inhabitants under the 2006 Act, the instant case was not one involving “give and take” on both sides; instead, the local inhabitants overwhelmingly deferred to the use by the golf club. The actual motive for the deference was irrelevant and it did not matter whether recreational users had deferred out of politeness or for reasons of safety. What mattered was the fact of the deference and how it would have appeared to the landowners. There was no basis upon which the defendants would have inferred that a right was being asserted: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95 and R (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin); [2003] 3 EGLR 69 applied.Note: Permission to appeal on the ambit of the “deference” principle was granted.Charles George QC and Jeremy Pike (instructed by Irwin Mitchell, of Sheffield) appeared for the claimant; George Lawrence QC (instructed by the legal department of Recar and Cleveland Borough Council) appeared for the defendants; Ross Crail (instructed by Ward Hadaway, of Newcastle upon Tyne) appeared for the interested party.Sally Dobson, barrister