Not easy being green

The recent judgment of the Supreme Court in R (on the application of Lewis) v Redcar and Cleveland Borough Council and Anor [2010] UKSC 11, reported in Solicitors Journal 154/9, 9 March 2010, brings into focus the drastic consequences that follow a town or village green registration: the public gains rights to recreation, but development value of the land is totally destroyed. In Redcar a strip of land owned by the borough council, which was wanted to build homes on, had formed part of a golf course. It was claimed a significant number of local people had used the course to walk on 'as of right' for at least 20 years. The locals deliberately stayed away from the golfers and did not interrupt play. The court was asked to decide whether deference to the golfer's use acted as a bar to registration.

A 'reasonable' view of public rights?

The justices' reasoning is unfortunately ambiguous given the wider repercussions of the court's ruling, which was perhaps because of the unhelpful certified questions. Was it is necessary to ask 'whether 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?' was the first question. This was paraphrased as the requirement for the users by their conduct on the land to 'bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off or eventually finding that they have established the asserted right against him'.

The reasoning of the two leading judgments appears to be contradictory. Lord Hope categorically thought it unnecessary to ask the question. But Lord Walker contended that while town or village green rights are prescriptive rights based on how matters 'would have appeared' to a 'reasonable owner on the spot', there is a 'significant difference'¦ between the acquisition of private and public rights'. Lord Walker appears to conclude that in the case of public TVG rights, where large numbers of people are using land owned by a local authority, acquiescence of the landowner to the users will be held as submission to the use. Only by divorcing TVG rights from all other public rights is it possible to reconcile Lord Walker and Lord Hope's judgments: the latter reformulated the question that should now be asked as: 'Whether the user by the public was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right.' This clear test can now be applied, but a quick comparison with the certified question and the different reasoning of the justices will demonstrate to the reader a potential source of confusion to be avoided.

The decision in Redcar means that the only requirements for user to be 'as of right' are now that use was 'not by force, nor stealth, nor licence of the owner'. Practitioners may prefer the reversed formulation that use was peaceable, open and without permission. It seems likely that there will be further litigation as to the definition of these categories.

End of deference

In light of the above, deference will no longer take land out of the Commons Act 2006. Lord Walker attributed no significance to the deference of locals other than that it showed their civility, courtesy and common sense.

The lesson for landowners is that if they tolerate locals coming onto their land, then, even if the latter's use does not interfere with the activities of the former (which may be extensive), the locals' usage may well give rise to registration. Redcar has established that there can be 'give and take' between the landowner and locals in their use of the land, and their rights can 'co-exist' both before and after a registration. Consequently, it does not matter if it would be reasonable for a landowner to resist local users for fear that establishment of public rights will destroy his right to use the land as he already does.

Frozen rights

The court's principle of co-existence makes it hard to advise clients post-registration. Once registered, the rights over the land are not restricted to the use that gave rise to them, but extend to the whole land. Where does this leave the landowner's prior use? Lord Hope suggested that a landowner could obtain an injunction where use by locals was 'all take and no give'. But are the landowner's (very often a local authority) rights effectively frozen in time upon registration, while the locals use is free to intensify? What about the circus or funfair that is proposing to use the land and any incidental cordoning off on health and safety grounds? Can improvements be made to land, such as installing tennis courts or playgrounds for the good of the local community? Can organised community events, such as concerts or children's activities be held on the land? All of these may also temporarily or even permanently deprive the locals of the use of part of the registered land. Moreover, interference with registered town or village green rights is a criminal offence. While registration stops development of the land, the court in Redcar has not assisted landowning local authorities to manage post-registration mixed use in the public interest.