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

Town and village greens – Registration – Commons Act 2006 – User as of right – Application to register part of golf course as green under section 15 of 2006 Act – Inspector finding user by local inhabitants not as of right since inhabitants deferring to golf course use – Test of use as of right – Whether deference precluding use from being as of right – Appeal allowedIn 2007, the appellant applied to the first respondent council to register part of a local golf course (the disputed land) as a town green, pursuant to section 15 of the Commons Act 2006. He did so on the ground that local habitants had enjoyed 20 years’ use of the land as of right for sports and pastimes. The first respondents owned the land, which they let to a golf club. The second respondent wanted to build a residential and leisure development on land that included the disputed land.The first respondents refused the application on the recommendation of an inspector. The inspector had found that the local inhabitants had not used the land as of right, within the meaning of section 15, because they had overwhelmingly deferred to the extensive use of the land by the golf club, such that they did not give the appearance of asserting a right; for example, recreational users refrained from walking on the playing areas while play was in progress.A judicial review of that decision was dismissed on the ground that the local inhabitants’ deference to the golfers prevented a finding that their user was as of right: see [2008] EWHC 1813 (Admin); [2008] PLSCS 212. That approach was upheld by the Court of Appeal: see [2009] EWCA Civ 3; [2009] 1 EGLR 79; [2009] 15 EG 100. The appellant appealed.Held: The appeal was allowed. The use of land by local inhabitants for sports and pastimes would be use “as of right” if the land had been enjoyed openly and in the way that a person with a right to do so would have used it. The focus was on the quality of the user and whether the local inhabitants had acted in a way that was comparable to the exercise of an existing right; it was irrelevant whether they believed they had such a right. If they had so used the land, the landowner would be taken to have acquiesced in the use unless it could establish one of three vitiating circumstances, represented by the requirement that the use must not have been by force, stealth or the licence of the owner. No additional requirement could be imposed that it would have appeared to a reasonable landowner that users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85, R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 EGLR 84, Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95 and Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 applied.Deference by local inhabitants to the landowner’s use of the land was not inconsistent with the inhabitants’ user being as of right: R (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin); [2003] 3 EGLR 69 considered. It could be attributed to an acceptance that where two or more rights coexisted over the same land, there might be occasions on which they could not be exercised simultaneously. Registration did not enlarge the rights of local inhabitants so as effectively to prevent the landowner from using the land for its own purposes, owing to the principle of equivalence between the user relied on to establish a right and the way in which that right, once established, could be exercised: Dalton v Henry Angus & Co (1881) LR 6 App Cas 740, White v Taylor (No 3) [1969] 1 Ch 160 and Mercer v Woodgate (1870) LR 5 QB 26 applied. Rights could coexist after registration subject to give and take on both sides, and this would be so where the recreational use had coexisted with the owner’s use during the 20-year period relied on to establish the right.The inspector had misdirected himself in the instant case and his recommendation to the first respondents could not stand. The local inhabitants’ use of the disputed land was peaceful, open and not based on any licence from either the first respondents or the golf club. Courtesy and common sense dictated that they interfered with the golfers’ progress over the course as little as possible. That was not inconsistent with the use of the land as of right for lawful sports and pastimes. It would not be reasonable to attribute the local inhabitants’ deference to the golfers to some supposed unwillingness to go against a superior right. The first respondents would be ordered to register the disputed land as a town green.Charles George QC, Jeremy Pike and Cain Ormondroyd (instructed by Irwin Mitchell, of Sheffield) appeared for the appellant; George Laurence QC and Rodney Smith (instructed by the legal department of Redcar and Cleveland Borough Council) appeared for the first respondents; Ross Crail (instructed by Ward Hadaway, of Newcastle upon Tyne) appeared for the second respondent.Sally Dobson, barrister