Victory for the Village Green Campaigners

In the recent decision of Lewis -v- Redcar and Cleveland Borough Council and others (February 2010) the Supreme Court considered the law relating to registration of town and village greens in a case concerning a golf course in Redcar, North Yorkshire. 

Landowners and developers should take note of this decision. Open land which is primarily used for another purpose (in this case, a golf course) is not safe from registration as a town or village green. 

In this article, we look at the relevant law set out in the Commons Act 2006 ("CA 2006"), and the implications of this decision. 

Registration of a town or village green

Anyone can apply to register land as a town or village green if a significant number of the inhabitants of a locality or of a neighbourhood have indulged "as of right" in lawful sports and pastimes on the land for at least 20 years. 
In addition, one of the following three circumstances must also apply:

• the use must be continuing at the time of the application; or
• the use ceased before the application to register was made, but after 6 April 2007. In this case, the application must be made within 2 years of the use ceasing; or
• the use ceased before 6 April 2007. In this case the application must be made within 5 years of the use ceasing. Further conditions do apply in this case, in particular registration would not be possible where:

o planning permission was granted before 23 June 2006; and
o construction works were started before 23 June 2006 in accordance with the planning permission, either on the land or any other land covered by the planning permission; and
o the land either has or will become permanently unusable for the purposes of lawful sports and pastimes as a result of the works authorised by the planning permission being carried out. 

The potential for a 5 year "grace period" can cause serious uncertainties. 

Effect of registration

Land which is registered as a town or village green is protected by legislation that effectively means that the land cannot be developed.

The Redcar decision

In this recent decision, the Supreme Court was required to decide whether Coatham Common in Redcar, used as a golf course until 2002, should be registered as a village green under Section 15 of the Commons Act 2006. The local inhabitants used the common for recreational purposes such as dog walking and parents playing with their children. The locals however clearly deferred to the extensive use of the land by the local golf club.

In June 2007, an application was made to register the common as a town and village green. Both the High Court and the Court of Appeal refused the application on the grounds that the use by the local people had not been "as of right". This was because the "give and take" between competing uses was overwhelmingly in favour of the golfers.

The Supreme Court unanimously overturned the Court of Appeal decision and ordered Redcar and Cleveland Borough Council to register the common as a village green. In particular the fact that the local people allowed the golfers to take priority did not prevent the locals from using the common "as of right". The local people (although courteous and sensible) were clearly asserting rights, which any reasonably alert owner should have recognised would lead to established rights unless action was taken to stop it.

Minimising the risks

Landowners and developers of open spaces should, after this decision, consider taking the following steps if the development of open space is contemplated:

1. Make full enquiry
Before acquiring open space for any form of development, make full enquiry of the seller as to any past use of the land by local people for recreational purposes.

2. Look and see
An inspection of the land may be invaluable in assessing whether such rights are exercised (but it will not help identify whether such use has taken place in the past).

3. Signage
Sufficient measures should be taken to demonstrate that "permission" is granted for the locals' use of the land. Unequivocal signage stating that use is allowed by permission may assist.

Conclusion

The Redcar decision reinforces the imbalance in the existing system for registration for town and village greens. Landowners and developers must be on their guard when seeking to develop or acquire open space for development. 

For further information, please contact Lucy Smallwood, who is an Associate in Michelmores' Commercial Property team at lucy.smallwood@michelmores.com.