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Helen Jackson and Mark Richardson comment on the impact of the recent case of R (Lewis) v Redcar and Cleveland Borough Council and Another.

In a judgment handed down last week the Supreme Court reversed the decision of the Court of Appeal and held that local residents could successfully apply to have proposed development land registered as town or village green under the Commons Act 2006.

The land had been used as part of a golf course for at least 80 years before 2002 and it was subsequently planned that the land would be developed. The local residents made an application to have the land registered as Village Green on the basis that the land had been used by local residents for recreation.

The Commons Act 2006 states that " any person may apply to the commons registration authority to register land [to which the Act applies] as a town or village green in a case where ... a significant number of the inhabitants of any locality or neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years"

The test for the proposition "as of right" is a three part test: nec vi, nec clam, nec precario (not by force, nor by stealth, not by licence of the owner).

The local residents' application originally failed because the inspector (appointed by the registration authority and the freehold owner of the land) found that local residents had deferred to the golfers while play was in progress and the inspector therefore concluded that the use of the land was not "as of right".

The Court of Appeal affirmed the decision of the inspector and the residents appealed to the Supreme Court. The Supreme Court's decision in the residents' favour will have important implications for developers who propose to develop open land that is or has been regularly used for recreation.

Land owners are deemed to be aware of the need to take appropriate preventive action if circumstances arise in which rights might be acquired that would enable an application to be made to register their land as a town or village green. If they fail to do so, they have acquiesced in the residents indulging in recreation on their land "as of right".. Land owners must take steps to ensure that residents are excluded from the land. In the Redcar case the owners of the land were aware of the use by the local residents but did not take sufficient action to prevent them from using the land. Signs were put up that read; "Cleveland Golf Club. Warning. It is dangerous to trespass on the golf course."

It was held the wording was too ambiguous to alter the character of the residents' use of the land. It is therefore important that any signs put up by landowners make it clear that the intention is to exclude third parties from the land and not just warn them of the dangers of using the land. Other action in addition to the erection of signs should be taken to prevent unlawful use, such as requesting trespassers to leave and, if necessary, taking action through the Courts.

It is recognised that land owners have been placed in a precarious position and many feel that the legislation is being used for a purpose that was not intended. During the Spring the Government proposes to consult over whether changes are needed to the existing process for registration of new town and village greens.

If this issue is of importance to you please contact Mark Richardson or Helen Jackson in the Litigation and Dispute Resolution Team for advice. The team is described as "exceptional" in the Legal 500 2010 independent directory.