Good news for developers on village greens
R (on the application of Kevin Lewis) v Redcar and Cleveland Borough Council and another
This Court of Appeal judgment is the latest chapter in the story of Town and Village Greens (TVG).
The requirements for the registration of land as a TVG are:
- use of land by local inhabitants
- for lawful sports or pastimes
- for a period of 20 years
- as of right and without permission
- without forceful entry.
The claimant was a local resident who applied for registration of a piece of land as a TVG. The council refused the application. An application for judicial review of this decision was dismissed by the High Court. The claimant appealed to the Court of Appeal.
The TVG land was within the Cleveland Golf Club links which had been in existence since at least since the 1920s, although the golf club use ceased in 2002. The TVG land was used for the club house, the first and eighteenth holes and a practice ground. However it was also used by non-golfers for informal recreation such as dog walking and children's play.
The inspector appointed by the council to hear an inquiry into the application for registration of the TVG land found that there was use of a footpath, sometimes as a shortcut, but that the recreational use of the open areas of the TVG land was not "as of right" before 2002 because there had been extensive use by the golf club. The inspector recommended refusal of the application to register and the council agreed.
The claimant challenged the decision by judicial review. The High Court accepted the inspector's findings in relation to the use of the TVG land by golfers and non golfers, and described the use by non-golfers as "deferring" to the use by golfers.
Appeal argument for the claimant
The claimant argued that where the landowners' use interrupted the recreational use for long periods of time, a claim for registration of a TVG could not succeed. However, where the interruption was minimal, such as where walkers waited whilst a golf drive was made, the interruption was insignificant. It was argued that in the same way as there is no incompatibility between agricultural uses of land (e.g. grazing of animals) and recreational use as of right (considered in an earlier TVG case (R (Laing Homes Ltd) v Buckinghamshire County Council)), there may be no incompatibility between non-agricultural use by an owner and recreational use as of right. The concept of "deference" (if it existed at all) was insufficient to defeat a TVG claim where the behaviour of the local residents was consistent with conduct which had nothing to do with deferring to priority rights of the owner.
Court of Appeal decision
The Court of Appeal rejected these submissions. The use by local residents must be such as to give the outward appearance to the landowner that the recreational use is being asserted and claimed as of right.
In this case, the TVG land was not used by local residents at certain times by reason of the activities of the owner. They could have walked across the open areas of the TVG Land at any time but voluntarily did not interfere with the owner's activities, even though they were not physically prevented from doing so. The court said:
"By adjusting their behaviour [the local residents] give the impression to the owner that they are not claiming a right to do what they are doing. That leads the owner not to regard the users as acting as of right.
The court referred to the crucial finding of the inspector that the local residents "overwhelmingly deferred" to the golfers. While the recreational use was extensive and frequent, so was the golf use, and since one deferred to the other, there was no use as of right by the local residents.
Landowners with sites which may be mothballed during the current credit difficulties need to be aware that local residents' use of land may lead to applications for registration as a TVG. Owners should maintain all the tools which will provide a defence to such an application, such as fencing, and notices. However this case shows that TVG registration is not to be lightly undertaken by an authority and where there are activities by the owner which preclude the "TVG" use, they may be used to defeat an application. However, it is important that owners maintain accurate records of their activities on the land and retain the evidence for a period in excess of 20 years.
Basildon Golf Friends v Basildon District Council
This case deals with the need or otherwise for an Environmental Impact Assessment (EIA) to be submitted with an application for planning permission. Local planning authorities may issue a screening opinion to determine whether an EIA is required.
The applicant applied for planning permission for the redevelopment of a golf course owned and operated by the council. The applicant did not submit an EIA and the council's screening opinion was that an EIA was not required.
Local residents challenged the grant of planning permission on the ground that an EIA was required and that the council had not properly considered the issues in issuing its screening opinion. The judge acknowledged that this was a case where he had "scrutinised the points ... anxiously" in the light of the council's commercial interest in the land and the outcome of the planning application.
The judge found that no EIA was required because the development did not fall into the definition of "EIA Development", and that the council had not acted improperly in any way.
What makes this case of note however is that oral evidence was given by the council officer responsible for issuing the screening opinion, to explain the reasons why he came to the conclusion he had. It is highly unusual for oral evidence to be given in judicial review hearings and this may set a precedent for future cases.