The latest Town or Village Green (TVG) case has been considered by the Supreme Court in R (on the application of Lewis) (Appellant) v Redcar and Cleveland Borough Council and another (Respondents).

The facts are reasonably straightforward:

  • Land owned by the council was leased to a golf club and used as part of a golf links
  • Over a long period (in excess of the 20-year period required to establish a claim for registration as a TVG), local residents had used the links, the rough and other parts of the golf club land for dog walking, jogging and general informal recreation
  • The golf club use ceased in 2002, and a national housebuilder became interested in acquiring the land for development
  • An application for registration of a TVG was submitted and an inquiry was held. The inspector heard evidence from both the claimants and the golfers. He concluded that as the walkers had "deferred" to the golfers, they were not using the land "as of right" and could not sustain a TVG claim. The evidence showed that the walkers had waited for the golfers to clear the greens and were content (for the most part) to be waved across the course by the golfers.
  • The inspector recommended that the claim be refused and the council followed the recommendation. A High Court challenge by the claimants was unsuccessful, as was an appeal in the Court of Appeal. The claimants appealed to the Supreme Court.

Five Law Lords considered the case and unanimously found that the concept of "deference" was not one which had any force in assessing a TVG claim.

The decision rested on what amounted to use "as of right" by the claimants. The test is "how would the use have appeared to the owner of the land". In this case the Law Lords found that a reasonably alert owner of the land could not have failed to recognise that the use of the land by the walkers was the assertion of a right and would mature into an established right unless the owner took action to stop it.

The general conclusion was that the "deference" was no more than usual polite behaviour between users of the land with different objectives. Just because the walkers waited for the greens to be clear, did not mean that they were not asserting a right to use the land, as they saw it.

The appeal was successful and the land will be registered as a TVG.

The effect of this case on landowners and prospective developers is severe. The decision explores at length the position of conflicting users of land after a TVG is registered. The Law Lords concluded that the users of the TVG may carry out lawful sports and pastimes and have a right to do so. This is not to prevent the owner's use of the land, even where this requires "give and take" by both sides. However that analysis assumes that the owner wishes to carry on with its previous use of the land, and does not wish to carry out a new use which is directly conflicting with the TVG use and which cannot be accommodated by any amount of "give and take".

In Redcar, the council now have a piece of land which would be acceptable for housing development land (and all the benefits that brings in terms of infrastructure and affordable housing) but which is now sterilised as a TVG.