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

Commons registration – Town or village green – Section 15 of Commons Act 2006 – User as of right – Appellant applying to register part of golf course as town or village green – Respondent council refusing application on ground that local inhabitants deferring to golfers – Judge refusing application for judicial review of that decision – Whether judge erring in law – Appeal dismissedIn 2005, the appellant applied to register part of a local golf course as a town or village green. The respondent council, which owned the land, appointed an inspector to hold a public inquiry. The inspector considered that the appellant 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) of the Commons Act 2006, or interrupted only after the commencement of section 15, within section 15(3) of the Act. He found that the recreational use by local inhabitants overwhelmingly deferred to the exclusive use of the land by the local golf club almost every day; walkers and others would, for example, wait for golfers to complete a hole before walking past. The respondents therefore refused the application.The appellant applied for judicial review of their decision. He contended, inter alia, that 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. He argued that recreational users “deferred” to golfers only out of politeness and for reasons of safety, which was not inconsistent with the assertion of a right.Sullivan J dismissed the application, holding that the local inhabitants had overwhelmingly deferred to the golfers and that motive for such deference was irrelevant. He held that there was no basis upon which the respondents would have inferred that a right was being asserted: see [2008] EWHC 1813 (Admin); [2008] PLSCS 212. The appellant appealed.Held: The appeal was dismissed.In determining whether local inhabitants had indulged in lawful sports and pastimes “as of right” within section 15 of the 2006 Act, that use had to be such as to give an outward appearance to the reasonable landowner that it was being asserted and claimed as of right: Hollins v Verney (1884) 13 QBD 304, Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035 and R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 EGLR 94 considered.It was a question of fact and degree for the fact-finder whether in practice there was an inconsistency between the owner’s activities on its land and the recreational activities of the local inhabitants. In some cases, the owner’s activities might not affect the activities of the local inhabitants. In such cases, provided that the use had not been by force, stealth or licence of the owner, the activities of the local inhabitants were likely to be held to have the necessary appearance of asserting a right against the owner. However, where a conflict of use arose and the activities of the local inhabitants could be accommodated only if they deferred to those of the owner, their activities might not appear to assert a right against the owner. Such deference would not convey to the reasonable owner the impression that the local inhabitants were claiming the right to use the land: R (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin); [2003] 3 EGLR 69 applied.In the instant case, the local inhabitants had continuously indulged in sports and pastimes on the land for a period of more than 20 years. Their use was extensive and frequent, but so too was use by the golfers. Crucially, the inspector found that the local inhabitants had overwhelmingly deferred to the golfers; the greater the degree of deference they displayed, the less likely that the reasonable owner would recognise an assertion of a right to use the land.The registration of a town or village green conferred the unqualified right to use land generally for sports and pastimes. To introduce the concept of a limited or qualified right did not answer the question as to whether the user had been “as of right”. There had to be give and take on both sides. On the findings of the inspector, the local inhabitants overwhelmingly “gave” and the golfers overwhelmingly “took”. Those findings were reasonably open to the inspector on his careful review of the evidence: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95 applied.Charles George QC and Jeremy Pike (instructed by Irwin Mitchell, of Sheffield) appeared for the appellant; George Laurence QC (instructed by the legal department of Redcar and Cleveland Borough Council) appeared for the respondents; Ross Crail (instructed by Ward Hadaway, of Newcastle upon Tyne) appeared for the interested party.Eileen O’Grady, barrister