Last year the Court of Appeal made it significantly more difficult for new town and village greens to be registered under the Commons Act 2006. The effect of that decision might well have been to put an end to the “village green industry”, so called by the cynics who consider that new village green applications are being “used as a weapon of guerrilla warfare against development of open land” (Lord Walker in R (on the application of Lewis) v. Redcar & Cleveland Borough Council & Anor [2010] UKSC 11, [2010] 2 W.L.R. 653 at [48]), had the decision been allowed to stand. However, the Supreme Court in that case, reversing the decision of the lower courts, has now put the village green industry firmly back on track. Lord Walker, giving the leading speech, recognised that “in the Commons Act 2006 Parliament has made it easier, rather than more difficult, to register a green”, and this decision is certainly consistent with the spirit of that stance. As a matter of law this decision also represents a welcome return to an orthodox interpretation of the test which applies in the determination of a prescriptive claim for the registration of a new green.

This case concerned Coatham Common (“the Application Land”), land owned by Redcar and Cleveland Borough Council (“the Council”), which had been occupied under a lease by Cleveland Golf Club for upwards of 80 years until 2002. The Application Land had formed part of a golf course which, as well as having been used regularly by members of the Cleveland Golf Club, had also been used extensively, for as far back as living memory went, by local inhabitants for informal recreation such as dog walking and children's play. At a public inquiry into the appropriateness of registration, the Inspector who chaired the public inquiry found that the recreational users had “overwhelmingly deferred” to use by the golfers. Following the cessation of golfing use the Council entered into a development partnership with the second respondent, Persimmon Homes (Teeside) Ltd. Planning permission to develop Coatham Common, together with other adjoining land, was granted in May 2007. The following month an application was submitted to the Council (which as well as being the owner of the land was also the registration authority, responsible for the registration of new town and village greens) to register the Application Land as a new green pursuant to section 15 of the Commons Act 2006. This provision requires that for land to qualify for registration as a new green it must have been used by a significant number of the inhabitants of a locality as of right for lawful sports and pastimes for at least 20 years. The aspect of the statutory test with which this comment is concerned is the need for user to have been “as of right”.

The “as of right” test is at the heart of any claim based upon the rules of prescription. Its traditional formulation requires user to have been nec vi, nec clam, nec precario (without force, without stealth, without permission). However, in the case of R (on the application of Laing Homes Ltd) v. Buckinghamshire County Council [2003] EWHC 1578 (Admin), [2004] 1 P. & C.R. 573, Sullivan J. determined that where the recreational users deferred to the landowner's own use of the land, use would not be as of right, notwithstanding user having been nec vi, nec clam, nec precario, because such user would not have the appearance of user as of right in the eyes of the landowner. In the later House of Lords' decision in Oxfordshire County Council v. Oxford City Council [2006] UKHL 25, [2006] 2 A.C. 674 Lord Hoffmann acknowledged in obiter comments that “the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so ‘as of right’”, appearing to endorse the relevance of Sullivan J.'s deference test.

At first instance in Redcar Sullivan J., not surprisingly, adopted the same line of reasoning that he had applied in Laing Homes, concluding that deference by the recreational users to use by the golfers meant that user could not have been as of right. This decision was upheld on appeal, Dyson L.J. giving the leading judgment of the Court of Appeal, and stating that, whilst he did not consider there to be a “principle of deference”, he did consider that deference “may be relevant to a determination of whether user has been sufficient to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land”. The Supreme Court has now reversed that decision, ordering that the Application Land be registered as a green.

Of deference Lord Walker, giving the leading speech, said:

All of the Justices agreed that deference was not relevant to the user as of right test.

One other matter which was considered at some length in the Justices' speeches was the extent of the respective rights of the owner and the local inhabitants once registration had taken place. It was only recently determined, in Oxfordshire, that any continuing rights of user do in fact arise for the benefit of the recreational users. However, the extent of those rights has remained unclear. There was consensus in Redcar that whilst the rights of the recreational users were not limited purely to the activities which had been relied upon in the application, there should be an equivalence between user before and after registration, just as there is in the context of the prescriptive acquisition of other public and private rights. Whilst any question about the extent of rights of user can only legitimately arise after registration, this does at least provide some indication of the likely approach of the courts should this issue come before them for determination.