Lewis, R (on the application of) v Redcar and Cleveland Borough Council & Anor (Rev 1).

Pursuant to s.15 of the Commons Act 2006, anyone can apply to register land as a town or village green, providing a significant number of the local inhabitants have been using the land ‘as of right’ for a period of at least 20 years. ‘As of right’ for these purposes means: without force, secrecy or permission. In the present case, a municipal sea front golf course had been used by non-golfing local inhabitants in common with the golfers for a period dating back to at least the 1920s. This land was then sold by the council to a developer, whose intention was to construct mixed residential and leisure use on an area of approximately 14 hectares. An application was then submitted by a group acting on behalf of the local residents to register the land as a village green on the basis of the lengthy period of continued recreational use. Initially the fact that residents had by and large given way to the golfers counted against the applicants as it was considered that this suggested that they were not acting in a way to suggest their use of the land was ‘as of right’. The Court of Appeal had previously upheld the “judge-made law” (as acknowledged by Sullivan J who granted leave to appeal from his own decision in this case) which determined that where recreational users had deferred to use made by the landowner of his own land, that deference was sufficient to render the user relied upon not as of right (which is a prerequisite for a prescriptive claim). On appeal to the Supreme Court, however, that decision was reversed and the application was granted. It was decided that the supposed deference shown to the golfers was perfectly natural behaviour and that the residents should not be penalised for acting in a courteous manner. It was acknowledged that where two uses (the use of the landowner and the use of the recreational users) coincide there may beoccasions when the two rights of user cannot be enjoyed simultaneously; the deference of one party to the other’s use simply being a matter of courtesy.