COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE DYSON
| The Queen on the Application of Kevin Lewis
|- and -
|(1) Redcar and Cleveland Borough Council
(2) Persimmon Homes (Teesside) Limited
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George Laurence QC (instructed by Redcar and Cleveland Borough Council, Legal and Democratic Services Division) and Ross Crail (instructed by Ward Hadaway Solicitors) for the Respondents
Hearing date: Tuesday 25 November 2008
Crown Copyright ©
Lord Justice Dyson:
The relevant statutory provisions
"(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.
(4) This subsection applies (subject to subsection (5)) where—
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the commencement of this section; and
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b)."
Mr Chapman's reports
"Use of Report Land by Golfers
 I find that, from as far back as living memory goes (at least as far back as the 1920s), the Report Land was continuously used as part of the Cleveland Golf Club links. The only exception is that the golfing was suspended during World War II. Golfing use ceased in 2002. I find that the club was a popular one and that the golf links were well used nearly every day of the year. In the years before 2002, the Report Land was used for the club house, the first and eighteenth holes and for a practice ground. There is some evidence that the precise configuration of the course changed somewhat over the years. The club house, tees, fairways, greens and practice ground did not, however, take up the whole of the Report Land and there were substantial areas of rough ground beside and between these features.
Use of Report Land by Non Golfers
 I find that from as far back as living memory goes, the open parts of the Report Land have also been extensively used by non golfers for informal recreation such as dog walking and children's play. Some of the walking has been linear walking in transit. Thus the informal paths running east-west have been used by caravan residents to get access to the centre of Redcar with its shops and public houses. Also, there is evidence of people taking a short cut south-north from Church Street to the gap in the fence in Majuba Road. However I am satisfied that the open parts of the Report Land have been extensively used by non golfers for general recreational activities apart from linear walking. I prefer the evidence on this point of the applicants' witnesses and of Mr Fletcher to the evidence of the objector's other witnesses that such use was occasional and infrequent.
 I find that the relationship between the golfers and the local recreational users was generally cordial. There was evidence of only a few disputes. Only Squadron Leader Kime seems to have caused problems by actively asserting a right to use the Report Land and the golf club appears to have tried to avoid any formal dispute with him. In my judgment, the reason why the golfers and the local people generally got on so well was because the local people (with the exception of Squadron Leader Kime) did not materially interfere with the use of the land for playing golf. Many of the applicants' witnesses emphasised that they would not walk on the playing areas when play was in progress. They would wait until the play had passed or until they were waved across by the golfers. Where local people did inadvertently impede play, a shout of "fore" would be enough to warn them to clear the course. I find that recreational use of the Report Land by local people overwhelmingly deferred to golfing use."
"Leaving aside the public footpath, I consider that the reasoning in the Laing Homes and Humphries cases squarely applies to the Report Land in the present case. Use of the Report Land as a golf course by the Cleveland Golf Club would have been in breach of IA 1857 s. 12 and CA 1876 s 29 if the Report Land had been a town or village green. It was a use which conflicted with the use of the Report Land as a place for informal recreation by local people. It was not a use which was with a better view to the enjoyment of the Report Land as a town or village green. The overwhelming evidence was that informal recreational use of the Report Land deferred to its extensive use as a golf course by the Cleveland Golf Club. Accordingly, use of the Report Land by local people was not as of right until use as a golf course ceased in 2002."
"My conclusion is that the application fails for the following reasons:
• Recreational user of the public footpath was by right as a public footpath.
• Recreational user of the rest of the Report Land by the inhabitants of Coatham was not as of right before 2002 because it deferred to the extensive use of the Report Land by the Cleveland Golf Club.
• Recreational user of the Report Land as of right is not continuing because such user has been permissive since the erection of the permissive signs in 2003."
"There is virtually no authority on the effect of the Victorian legislation. The 1857 Act seems to have been aimed at nuisances (bringing on animals or dumping rubbish) and the 1876 Act at encroachments by fencing off or building on the green. But I do not think that either Act was intended to prevent the owner from using the land consistently with the rights of the inhabitants under the principle discussed in Fitch v Fitch (1797) 2 Esp 543. This was accepted by Sullivan J in R (Laing Homes Ltd) v Buckinghamshire County Council  1 P & CR 573, 588. In that case the land was used for "low-level agricultural activities" such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes. No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so "as of right". But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not. Nor do I follow how the fact that, upon registration, the land would become subject to the 1857 and 1876 Acts can be relevant to the question of whether there has been the requisite user by local inhabitants for upwards of 20 years before the date of the application. I have a similar difficulty with paragraph 141 of the judgment of Judge Howarth in Humphreys v Rochdale Metropolitan Borough Council (unreported), 18 June 2004, in which he decided that acts of grazing and fertilising by the owner which, in his opinion, would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition."
"3.2. Relationship Between Golf and Other Use
The reasoning in para. 221 of my Report requires reconsideration in the light of the doubts cast upon some of the reasoning in the Laing Homes and Humphries cases in para. 57 of Lord Hoffmann's opinion. This para. of Lord Hoffmann's opinion was not directed to any of the specific issues on which the House of Lords made any order and did not raise an issue expressly discussed by any of the other law lords. Nonetheless, there was majority support for Lord Hoffmann's speech in general and these comments of Lord Hoffmann must be very carefully considered.
As I understand Lord Hoffmann's comments, he is identifying the need carefully to distinguish between two distinct points about the relationship between the user of the land (a) by (or on behalf of) the landowner and (b) by the local inhabitants.
First, he disagrees with the views of Sullivan J in the Laing Homes case and of Judge Howarth in the Humphries case that the fact that the landowner is carrying on activities during the relevant 20 year period which would be in breach of the Victorian statutes if the land had been a green necessarily disqualifies the land from becoming a new green. He says that the recreational activities of local inhabitants can create a new prescriptive green if in practice they are not inconsistent with the use of the land made by the landowner. Insofar as I relied on the Victorian statues in this part of my Report, I was wrong, according to Lord Hoffmann's reasoning.
However, second, Lord Hoffmann says that the use made of the land by the landowner may be relevant to the question whether the landowner would have regarded persons using the land for sports and pastimes as doing so "as of right". It seems to me that this is a critical issue on the facts of the present case. My finding of fact (para. 175) was that recreational use of the Report Land by local people overwhelmingly deferred to golfing use. My conclusion was that such deferral precluded use "as of right" (para 221). This is a conclusion which still seems to me to be correct and to be in accordance with the comments of Lord Hoffmann. If local recreational users overwhelmingly deferred to golf use, they did not have the appearance of asserting a right as against the landowner to use the land for recreation.
Thus, even if the decision of 7th April 2006 could be re-opened, I would not alter my conclusion and recommendation on this point either."
The principal previous authorities
"…It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner. (For this requirement in the case of custom, see Mills v. Colchester Corporation (1867) L.R. 2 C.P. 476, 486). The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right--in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period…"
"Thus, the proper approach is not to examine the extent to which those using the land for recreational purposes were interrupted by the landowner's agricultural activities, but to ask whether those using the fields for recreational purposes were interrupting Mr Pennington's agricultural use of the land in such a manner, or to such an extent, that Laings should have been aware that the recreational users believed that they were exercising a public right. If the starting point is, "how would the matter have appeared to Laings?" it would not be reasonable to expect Laings to resist the recreational use of their fields so long as such use did not interfere with their licensee, Mr Pennington's use of them, for taking an annual hay crop."
"…From the landowner's point of view, so long as the local inhabitants' recreational activities do not interfere with the way in which he has chosen to use his land – provided they always make way for his car park, campers or caravans, or teams playing on the reserve field, there will be no suggestion to him that they are exercising or asserting a public right to use his land for lawful sports and pastimes."
"If it was possible for the local inhabitants to establish the existence of a village green after 20-years use in such circumstances (because there had been virtually no interruption of their recreational activities), the landowner would then be prohibited by the nineteenth-century legislation, sections 12 and 29, from continuing to use his land, on an occasional basis, for any purpose which would interrupt or interfere with the local inhabitants' recreational use. I do not believe that Parliament could have intended that such a user for sports and pastimes would be "as of right" for the purposes of section 22. It would not be "as of right", not because of interruption or discontinuity, which might be very slight in terms of numbers of days per year, but because the local inhabitants would have appeared to the landowner to be deferring to his right to use his land (even if he chose to do so for only a few days in the year) for his own purposes."
"that using the three fields for recreation in such a manner as not to interfere with Mr Pennington's taking of an annual hay crop for over half of the 20-year period, should have suggested to Laings that those using the fields believed that they were exercising a public right, which it would have been reasonable to expect Laings to resist."
"49. So one has to look at the provisions about greens in the 1965 Act like those of any other legislation, assuming that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise. If the Act conferred no rights, then the registration would have been useless, except perhaps to geographers, because anyone asserting rights of recreation would still have to prove them in court. There would have been no point in the conclusive presumption in section 10. Another possibility is that registration conferred such rights as had been proved to support the registration but no more. So, for example, if land had been registered on the strength of a custom to have a bonfire on Guy Fawkes Day, registration would confer the right to have a bonfire but no other rights. But this too would make the registration virtually useless. Although the Act provides for the registration of rights of common, it makes no provision for the registration of rights of recreation. One cannot tell from the register whether the village green was registered on the basis of an annual bonfire, a weekly cricket match or daily football and rounders. So the establishment of an actual right to use a village green would require the inhabitants to go behind the registration and prove whatever had once satisfied the Commons Commissioner that the land should be registered.
50. In my view, the rational construction of section 10 is that land registered as a town or village green can be used generally for sports and pastimes. It seems to me that Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well. This would be in accordance with the common law, under which proof of a custom to play one kind of game gave rise to a right to use the land for other games: see the Sunningwell case  1 AC 335, 357A-C.
51. This does not mean that the owner is altogether excluded from the land. He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants. There has to be give and take on both sides. Fitch v Fitch (1797) 2 Esp 543 was a sequel to Fitch v Rawling 2 H Bl 393, in which the custom of playing cricket on land at Steeple Bumpstead had been established. The evidence was that the defendants had trampled the grass which the owner had mowed, thrown the hay about and mixed some of it with gravel. Heath J said:
"The inhabitants have a right to take their amusement in a lawful way. It is supposed, because they have such a right, the plaintiff should not allow the grass to grow: there is no foundation in law for such a position. The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded.""
The judgment of Sullivan J in the present case
"…All parties were agreed that the second limb of the reasoning in Laing Homes was not disapproved by Lord Hoffmann. Indeed, his acceptance that "the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so as of right", would appear to confirm that the proper approach is that set out in paragraph 82 of Laing (see above), ie, whether those using the land for recreational purposes were interrupting the landowner's use of the land for his own purposes in such a manner or to such an extent that the landowner should have been aware they were exercising a public right."
"I accept the principle that in practice low-level activities by the landowner may not be inconsistent with the use of his land for sports and pastimes for the purposes of section 15 of the 2006 Act, but I do not consider that, on the basis of Mr Chapman's findings of fact, the activities of the golf club could sensibly be described as "low-level activities". The land was not some far flung corner of a little used golf club. In the years before 2002 it was used for the club house, the first and the eighteenth holes (so that balls were being driven both from east to west and from west to east) and as a practice course, although there were substantial areas of rough ground beside and between the club house, the tees, fairways, greens and practice ground. The club was a popular one and the links were well used nearly every day of the year . In paragraph 221 Mr Chapman described the club's use of its land as "extensive". Although he did not say so in the report, as a matter of common sense, with the presence of the club house and the first and last holes and the practice ground, the land must have been the busiest part of a popular and well used golf course. The part of the course where all of the players would begin and end their games."
In these circumstances, he said that the earlier authorities dealing with "give and take" between the landowner's use of his land and its use for recreational purposes by local inhabitants were of no real assistance.
"39. Since the land was probably properly the busiest part of a golf course that was "popular" and "well used", the local users would have impressed themselves on the golf club as a 'nuisance' and would have caused problems for the likes of Mr Judson if there has not been the "overwhelming deference" found by Mr Chapman. Mr George submitted that the periods of interruption were very brief, "at most a few seconds at a time whilst a particular shot was being played". However, there was no evidence before Mr Chapman as to how long a local user would have to wait for a particular shot to be played. Presumably the length of time would vary depending upon the skill of the player and the intrepidity and agility of the local user. But that is not the question. It is unrealistic to examine the length of each 'interruption' shot by shot. This was not an interruption case. It is necessary to consider the overall extent of the golf club's "extensive use" of the land as a golf course and whether local users appeared to have been deferring to its chosen use of the land.
40. Mr George submitted that there had been "give and take" between the local users and the golf club. There was give and take, but on Mr Chapman's findings of fact, which were reasonably open to him on the evidence, there was overwhelmingly "give" on the part of local users and "take" on the part of the golfers. Mr George submitted that there were good practical reasons for the deference found by Mr Chapman which had nothing to do with the local inhabitants deferring to the landowner's property rights, thus there was no proper basis on which the defendant could have assumed that no rights were being asserted by the public. It would be stupid and dangerous to walk across the line of play when a ball was about to be struck and most people would naturally defer to those using the land for other recreational pursuits, including golf, as a matter of common courtesy.
41. I can readily accept the submission that when deciding whether or not to defer to golfers the local users would have been concerned to ensure their own safety and to behave in a courteous manner towards other users of the land, and would have been most unlikely to have been in the least concerned with any question of competing legal rights, but the motives of the local users for showing "overwhelming deference" to the golf club's use of its land as a golf course are irrelevant (see the reference to Lord Hoffmann's opinion in the Sunningwell case in paragraph 32 above). The question is: how would the matter have appeared to the golf club? It would not be reasonable to expect the club to resist the recreational use of the land by local users if their use of the land did not in practice interfere with its use by the club as part of a popular and well used golf course (see paragraph 82 of Laing and paragraph 57 of the Oxfordshire case above). What matters to the landowner is the fact of deference to his use of the land, not the reasons for it which might vary from individual to individual.
42. For these reasons the second ground of challenge fails and it follows that the application for judicial review must be dismissed."
The appellants' arguments
"It is difficult, if not impossible, to enunciate a principle which will reconcile all the decisions, and still more all the dicta to be found in them; the only safe course is to fall back on the language of the statute, to give effect to it, and to introduce into it nothing which is not to be found there. It is sufficient for the present case to observe that the statute expressly requires actual enjoyment as of right for the full period of twenty years before action. No use can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended. Can an user which is confined to the rare occasions on which the alleged right is supposed in this instance to have been exercised, satisfy even this test? It seems to us that it cannot: that it is not, and could not reasonably be treated as the assertion of a continuous right to enjoy; and when there is no assertion by conduct of a continuous right to enjoy, it appears to us that there cannot be an actual enjoyment within the meaning of the statute. Without therefore professing to be able to draw the line sharply between long and short periods of non-user, without holding that non-user for a year or even more is necessarily fatal in all cases, without attempting to define that which the statute has left indefinite, we are of opinion that no jury can properly find that the right claimed by the defendant in this case has been established by evidence of such limited user as was mainly relied upon, and as was contended by the defendant to be sufficient in the present case" (emphasis added).
"as of right" means nec vi, nec clam, nec precario, that is "not by force, nor stealth, nor the licence of the owner": see pp 350, 351, 353-354. In this case there was no question of force or stealth. So the only question is whether the inhabitants' user was by the licence of the owner."
"No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so "as of right". But…I do not agree that low level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not."
Lord Justice Rix:
"No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so "as of right". But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not" (at para 57).
It follows that the facts relating to competing activities may well be relevant to, and thus possibly antithetical to, the establishment of the inhabitants' use to be "as of right", and the example of such a case which Lord Hoffmann canvassed is one where in practice the uses of inhabitants and owner are inconsistent. I agree with Mr Laurence QC that Lord Hoffmann is there dealing with the most basic notion of "as of right" (with which vi, clam and precario are in conflict), namely that the inhabitants' use must demonstrate to the owner that they assert a right to do what they do.
Lord Justice Laws: