Establishing Town Green Rights: The Lewis v. Redcar and Cleveland Borough Council Judgment

Introduction

The case of Lewis, R (on the application of) v. Redcar and Cleveland Borough Council & Anor ([2010] UKSC 11) marks a significant moment in the jurisprudence surrounding the registration of town and village greens under the Commons Act 2006. This judgment, delivered by the United Kingdom Supreme Court on March 3, 2010, delves into the intricate balance between communal recreational use and land development rights. The appellant, Mr. Kevin Lewis, alongside other local residents, sought to register a contested piece of land in Redcar as a town green, challenging the Redcar and Cleveland Borough Council's refusal based on historical usage patterns involving both local recreation and golfing activities.

Summary of the Judgment

The Supreme Court ultimately allowed the appeal, directing the Borough Council to proceed with the registration of the disputed land as a town green under the Commons Act 2006. The core issue revolved around whether the local residents' recreational use of the land was "as of right" under the Act, especially considering the historical use of the land by the Cleveland Golf Club. The court examined the nature of the use, the concept of "deference" exhibited by the local inhabitants towards the golfers, and the applicability of precedents interpreting "as of right" within the statutory framework.

Key findings included:

The local inhabitants had used the land for lawful sports and pastimes for over 20 years without force, stealth, or precario (temporary permission).
The "deference" by locals to golfers did not negate their use being "as of right".
Precedents such as Sunningwell, Beresford, and Oxfordshire were pivotal in shaping the court's reasoning.
The court clarified that registration grants the right to use land for lawful sports and pastimes without necessarily impinging upon existing landowner rights, provided there's mutual respect and reasonable accommodation.

Analysis

Precedents Cited

The judgment extensively referenced prior cases that shaped the understanding of "as of right" usage under accumulation statutes:

R v Oxfordshire County Council Ex p Sunningwell Parish Council [2000] 1 AC 335 ("Sunningwell") – Emphasized that use must be without force, stealth, or precario.
R(Beresford) v Sunderland City Council [2003] UKHL 60 ("Beresford") – Addressed the coexistence of multiple recreational uses on registered greens.
Oxfordshire County Council v Oxford City Council [2006] UKHL 25 ("Oxfordshire") – Discussed the impact of registration on land use and owner rights.
R(Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28 – Explored the intention behind dedication in highway creation.
Fitch v Fitch (1797) 2 Esp 543 – An early case affirming coexistence of land uses under prescription.
Bright v Walker (1834) 1 CM & R 211 – Clarified the necessity of open and non-secretive use.

These precedents collectively underscored that for communal use to be "as of right," it must be open, without coercion or secrecy, and continuous for at least 20 years.

Legal Reasoning

The Supreme Court's legal reasoning hinged on interpreting the phrase "as of right" within the Commons Act 2006. The court affirmed that:

The use of land for lawful sports and pastimes by local inhabitants over a significant period satisfies the criteria for registration as a town green, provided it's free from force, stealth, or temporary permission.
The "deference" shown by locals towards golfers did not equate to a non-rightful use but rather showcased mutual respect, allowing coexistence of different land uses.
Registration under the Act grants rights to use the land for various lawful activities without necessarily infringing upon the landowner's rights, as long as both parties exercise their rights reasonably.

The court also addressed the concern that registration could lead to an imbalance favoring public rights over landowner rights. By emphasizing the principle of "give and take," the court clarified that registered rights do not necessarily override existing uses but coexist harmoniously.

Impact

This judgment has profound implications for future cases involving land registration as town or village greens:

Clarification of "As of Right": Reinforces that continuous, open, and non-coercive use qualifies land for green registration.
Coexistence of Land Uses: Establishes that different recreational uses can coexist on registered land, provided mutual respect is maintained.
Landowner Rights: Affirms that registration does not inherently diminish landowner rights, promoting a balanced approach to land use.
Development Considerations: Developers must now consider the protected status of land designated as a town green, potentially affecting planning and development projects.

Overall, the decision promotes a nuanced understanding of communal land rights, encouraging harmonious coexistence between public recreational use and private landowner interests.

Complex Concepts Simplified

"As of Right"

The term "as of right" refers to the manner in which land is used continuously and openly without force, stealth, or temporary permission. It implies that the use is lawful, regular, and recognized by both the community and, implicitly, the landowner.

Deference

Deference in this context refers to the courteous and respectful behavior exhibited by local inhabitants towards golfers using the land. This does not imply that the inhabitants lacked the right to use the land but rather that they chose to minimize interference with the golfers' activities.

Prescription

Prescription is a legal concept where continuous and uninterrupted use of land over a statutory period (20 years in this case) can establish a prescriptive right to continue that use.

Nec Vi, Nec Clam, Nec Precario

These Latin phrases mean:

Nec Vi: Not by force.
Nec Clam: Not secretly or stealthily.
Nec Precario: Not under a temporary license or permission.

Together, they define the conditions under which land use can be considered "as of right."

Conclusion

The Lewis v. Redcar and Cleveland Borough Council judgment serves as a pivotal reference point in UK land law, particularly concerning the registration of town and village greens. By affirming that communal recreational use can coexist with other land uses when conducted "as of right," the Supreme Court has provided clarity on the application of the Commons Act 2006. The decision underscores the importance of continuous, open, and respectful land use in establishing prescriptive rights, while also safeguarding the rights of landowners to maintain their preferred land usages. This balanced approach ensures that communal spaces can thrive without unduly impinging upon private interests, fostering a harmonious relationship between the public and landowners.

Moving forward, stakeholders must navigate the legal landscape with an understanding of these principles, ensuring that land use registrations are pursued based on genuine, longstanding communal practices rather than as strategic barriers against development. The judgment not only resolves the immediate dispute but also sets a precedent that will guide future interpretations and applications of land registration laws in the UK.