The Supreme Court has recently decided on a case that could have a considerable impact for land owning clients. It could particularly affect those with development aspirations.
The case (R (on the application of Lewis) –v- Redcar & Cleveland Borough Council (and another)) reverses the decision of the lower courts. As a result of the case they have ordered that part of a golf course in the North East is registered as a Village Green.
The land had been used for informal recreation – predominantly walking but also other lawful sports and pastimes - by local people for the requisite minimum period of 20 years. In Court it was argued that the use has not met the strict criteria of ‘nec vi, nec clam, nec precario’ and in particular use had not been ‘as of right’ to qualify with the requirements of Section 15 of the Commons Act 2006. The Supreme Court disagreed.
In Court, Lord Walker said that he had difficulty seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the land, simply because they normally showed civility towards members of the golf club.
The Supreme Court decision effectively means that they consider beyond all doubt that use of the land in question as a Village Green can co-exist with the landowners activities. In the facts of this case - the land in question was part of a Common - that is probably correct. But its effect may have significant ramifications for other activities and land – particularly those properties the public may be using which has long term development potential.
Where development may be a longer term prospect, steps need to be taken to defend against an application for registration of land as a Village Green. Those clients with long term development prospects need to monitor public use of land and in particular footpaths and take necessary steps to protect their position. For a claim to register a Village Greens to be successful it must not be by force, nor stealth nor with permission of the Landowner. However, the 2006 Act and its regulations do not provide for costs to be awarded against a losing party – which could result in vexatious applications and costly proceedings and delay.
The effect of designation is permanent and cannot readily be reversed. Once designated as a Village Green the area is registered in the Commons Register and is unlikely to be removed.
We would be pleased to discuss the implications of the ruling with you and what steps can be taken. Please contact Neil Fraser on 01908 558748.