Citation Codes
Equivalent Citations
citation codes
Advocates
- Appellant Charles George QC Jeremy Pike Cain Ormondroyd (Instructed by Irwin Mitchell)
- 1st Respondent George Laurence QC Rodney Stewart Smith (Instructed by Redcar and Cleveland Borough Council)
- 2nd Respondent Ross Crail (Instructed by Ward Hadaway�)
See more information ...
Click here to read the full judgment
Lewis, R (on the application of) v. Redcar and Cleveland Borough Council & Anor (Rev 1)
Smart Summary
Factual and Procedural Background
The Appellant, together with four other local residents of The City, applied to have a coastal area (“the disputed land”) registered as a town green under section 15 of the Commons Act 2006. The land had been used for over 80 years both by members of The Golf Club (as part of their course) and by local inhabitants for informal recreation such as dog-walking and children’s play.
Two applications were made. The first (2005) failed under the Commons Registration Act 1965. The second (2007) relied on the newly-enacted Commons Act 2006. An inspector appointed by the Registration Authority recommended refusal, reasoning that local users “deferred” to golfers and so had not used the land “as of right.” The Registration Authority adopted that advice.
The Appellant sought judicial review. Judge Sullivan and the Court of Appeal upheld the refusal, again relying on the notion of “deference.” The Appellant appealed to the Supreme Court, where Company A (the developer) was an interested party.
Legal Issues Presented
- Whether, under section 15 of the Commons Act 2006, recreational use that is open, peaceable and without permission (nec vi, nec clam, nec precario) can nevertheless fail to be “as of right” because local users defer to the concurrent activities of the landowner or its licensees.
- Whether the inspector and the Registration Authority erred in law in treating such deference as fatal to registration of the disputed land as a town green.
- What rights subsist between landowner and local inhabitants once land is registered as a green where both have historically used the land contemporaneously.
Arguments of the Parties
Appellant's Arguments
- The statutory test is satisfied if use has been nec vi, nec clam, nec precario; “deference” adds no further hurdle.
- Local civility toward golfers does not equate to acknowledging a superior right; it is compatible with asserting a public right.
- The inspector misapplied precedent and misunderstood the effect of registration, which does not extinguish the landowner’s existing uses.
Registration Authority & Company A’s Arguments
- A reasonable owner would not view accommodating recreational users as acquiescence in the acquisition of rights; the locals’ conduct showed they were not asserting any right.
- Post-registration, golfers’ activities would be curtailed; such an asymmetry indicates that pre-registration use could not have been “as of right.”
- The reasoning of Laing Homes and judicial statements in Oxfordshire support “deference” as a bar to registration.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Oxfordshire CC ex p Sunningwell Parish Council [2000] 1 AC 335 |
“As of right” equates to nec vi, nec clam, nec precario; subjective beliefs irrelevant. |
Confirmed that civility does not negate assertion of right; court followed Lord Hoffmann’s analysis. |
| R (Beresford) v Sunderland CC [2004] 1 AC 889 |
Quality of user necessary for village green registration. |
Reaffirmed tripartite test without additional “deference” requirement. |
| Oxfordshire CC v Oxford City Council [2006] 2 AC 674 |
Effect of registration and co-existence of rights. |
Majority passages on “give and take” endorsed; not authority that landowner’s use is extinguished. |
| R (Laing Homes Ltd) v Buckinghamshire CC [2004] 1 P & CR 573 |
First articulation of “deference” concept. |
Supreme Court disapproved extension of this doctrine. |
| Fitch v Fitch (1797) 2 Esp 543 |
Concurrent recreational and agricultural uses can co-exist. |
Cited to illustrate historical “give and take.” |
| Bright v Walker (1834) 1 CM & R 211 |
User must be open and as a person rightfully entitled would use it. |
Applied to show openness of local use. |
| Gardner v Hodgson’s Kingston Brewery [1903] AC 229 |
High authority for tripartite test defining “as of right.” |
Relied on to reject additional elements beyond nec vi, nec clam, nec precario. |
| Hollins v Verney (1884) 13 QBD 304 |
Continuity and notoriety of user required for prescription. |
Used to emphasise importance of visible user rather than subjective intent. |
| Cumbernauld & Kilsyth DC v Dollar Land 1993 SC (HL) 44 |
Public rights arise where use would reasonably appear to be assertion of right. |
Supported view that conflict with owner is not essential. |
Court's Reasoning and Analysis
The Supreme Court held that the inspector and lower courts misapplied the statutory phrase “as of right.” The Court’s analysis proceeded as follows:
- Statutory construction. Section 15 imports the traditional tripartite test; no additional requirement of demonstrating that a reasonable landowner would recognise an asserted right.
- Nature of “deference.” Polite co-existence with golfers was characterised as ordinary civility, not submission to a superior title. Such conduct does not prevent recreational use from being “as of right.”
- Co-existence of rights. Registration entrenches existing recreational use but does not extinguish compatible uses by the owner. Therefore concerns about an “asymmetry” post-registration were misplaced.
- Error of law by the inspector. By treating “overwhelming deference” as fatal, the inspector applied an incorrect legal test; the Registration Authority therefore erred in law.
- Precedent distinguished. Laing Homes was fact-specific and did not establish a general doctrine of deference. Statements in Oxfordshire did not compel the conclusion reached below.
Holding and Implications
Appeal ALLOWED. The Court ordered the Registration Authority to register the disputed land as a town green.
Implications: The decision clarifies that courtesy or “deference” toward concurrent users does not defeat the “as of right” requirement. It confirms that the traditional nec vi, nec clam, nec precario test remains exhaustive, providing important guidance for future village-green applications but creating no new rights beyond statutory registration.
Click here to read the full judgment