The decision in brief

The Supreme Court has ruled in R (on the application of Lewis) v Redcar and Cleveland Borough Council and Another1 that where land which formed part of a golf course was also used by local residents for informal recreation (principally dog walking), the use by the public was sufficient to allow the land to be registered as a Village Green under the provisions of the Commons Act 2006 (the “Act”), thus creating permanent recreational rights for the public including, to walk dogs, picnic, fly kites, and play ball games. The decision will appear absurd to many but coming from our highest court, is unlikely ever to be overturned.

Why is this decision important and what are its implications?

The decision marks a worrying change of approach to the way that questions of competing use of land are considered in applications under the Act. It is now the case that where members of the public have had access to golf courses there is a real risk that their use of the land could be relied upon to register that land as a Town or Village Green, even when their use would appear to be secondary to the use of the land by golfers.

Registration of land as a Town or Village Green under the provisions of the Act imposes an obligation upon the landowner to maintain the land for use as a Village Green, including maintaining suitable public indemnity insurance. As a result, in the case of registration of a golf course any use by golfers would have to defer to public recreation such that in practical terms it may be impossible for golf use to continue if it interferes with that public use. Land registered as a Village Green can never be developed or altered in any way that would reduce the amenity value of the land as a Village Green for the public.

In short, a substantial asset will be converted overnight into an ongoing liability. Even the threat of an application may blight land for years.

The Decision in detail

The land in Lewis formerly included the tees, fairways and greens of the first and eighteenth holes and a small practice area at Cleveland Golf Club Links. For at least 80 years leading up to 2002 it had formed part of the golf course. It was also used by the local inhabitants for informal recreation including dog walking. The public use did not interfere with or interrupt play by the golfers and members of the public would generally wait until play had passed or until they were waved through by the golfers. The two activities therefore appeared to have co-existed during that period.

In June 2007, five local residents applied to register the land as a Village Green under the provisions of s15 of the Act. In order to succeed in their application, the residents would have to demonstrate that a significant number of people living within a distinct neighbourhood or locality had used the land “as of right” for the period of 20 years for lawful sports and pastimes. “As of right” in this context means not in the face of clear and express objection by the landowner, nor with the express permission of the landowner, nor in secret.

However, central to Lewis was the question of whether the public use of the land had “deferred” to the use by golfers, that is to say whether the public would as a matter of practice allow golf play to take priority over their own use, and vice versa. If use by the public could be said to have deferred to golf use then the public use should fail to be use “as of right” for the purposes of registering the land.

The application was dealt with by way of a Pubic Inquiry at which it was held that the overwhelming evidence was that informal recreational use of the land deferred to its extensive use as a golf course by the Cleveland Golf Club. As such, use of the land by local people was held not to be “as of right” until use of the golf club ceased in 2002. The application was therefore rejected.

The residents sought to judicially review the decision to reject the Application but failed on the basis that local residents’ deference to golfers had prevented their use being “as of right” prior to 2002. The residents were not deterred and took the matter to the Court of Appeal. The appeal was unanimously dismissed when again the decision was made that deference had prevented use being “as of right”.

The residents proceeded to take the question of “deference” to the Supreme Court. Here it was held that the mere fact that the public showed civility to the golfers by allowing golf use to take precedence was not sufficient to prevent that public use from being use “as of right”. As a result the appeal was allowed and the land was registered as a Village Green.

So, the fact that local residents defer in their use to those playing golf will not necessarily mean that an application to register land as a Village Green will fail.