QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LEWIS||Claimant|
|REDCAR AND CLEVELAND BOROUGH COUNCIL||Defendant|
|PERSIMMON HOMES PLC||Interested Party|
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Mr G Lawrence QC (instructed by Redcar & Cleveland BC) appeared on behalf of the Defendant
Miss R Crail (instructed by Ward Hadaway) appeared on behalf of the Interested Party
Crown Copyright ©
"Recreational user as of right is not continuing because user has been permissive since the permissive signs were erected in . Mr Cooper [the principal spokesman for the applicants for registration] conceded that the permissive signs were fatal to the present application as the law now stands."
In paragraph 224 Mr Chapman pointed out that this reason for refusing registration would be reversed by the Commons Bill if it was enacted in the form then proposed. The Commons Bill became the 2006 Act which repealed the 1965 Act (see section 53 and Schedule 6 and the various commencement orders made under section 56). Section 15 of the 2006 Act provides so far as material:
"15. Registration of greens
(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) [not relevant]) 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)."
The commencement date for section 15 was 6th April 2007.
" I consider that the applicants have established 20 years recreational use of the Report Land nec vi before 1998. In that year the golf club erected signs on the Report Land which made it clear that the club was asserting that local users were trespassers. User in disregard of these signs was, in my judgment, vi. After the signs were taken down, user nec vi resumed. User as of right was thus interrupted in 1998 . . .
 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 Course would have been in breach of the [Inclosure Act] 1857 section 12 and the [Commons Act] 1876 section 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."
The relevant paragraphs in the further report are paragraphs 3.1 and 3.2:
"3.1. Relevant 20 Years . . .
However, I found as a fact in my report that recreational user by local people as of right was interrupted by prohibitory notices in 1998 and terminated by permissive notices in 2003 (report paras 176, 217 and 219). Accordingly, it appears to me quite plain that the application must fail under the law as it now stands after the Oxfordshire ruling. Thus, even if the decision of 7th April 2006 could be reopened, my advice to the Council that the application should be rejected would be the same.
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. In so far as I relied on the Victorian statutes 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 user 'as of right' (para 221). This is a conclusion which still seems to me to be correct and 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 reopened, I would not alter my conclusion and recommendation on this point either."
The Grounds of Challenge
Ground 1: The Notices
" . . . I find that signs were erected on the Report Land in 1998 stating --
Although these were vandalised several times after which the golf club gave up trying to maintain them, I am satisfied that they were in place long enough for regular users of the Report Land to know of them. Indeed, it seems that they caused a stir locally because of the implication that local people using Coatham Common were trespassers. They also received publicity in the local newspaper . . . "
"The landowner does not have to meet force with force. He can achieve the same effect by making non-forcible objection or protests directed towards the users of his land. In Newnham v Willison (1988) 56 P&CR 8 there was a dispute as to the existence of a right of way. Kerr LJ referred to Megarry and Wade's The Law of Real Property (5th ed):
'Then the authors deal with forcible user, saying that it extends not only to user by violence, as where a claimant to a right of way breaks open a locked gate, but also to user which is contentious or allowed only under protest . . .
If there is to be a state of 'perpetual warfare' between the parties, there can obviously be no user as of right; and if the servient owner chooses to resist not by physical but by legal force . . . the claimant's user will not help a claim by prescription . . . "
Having analysed the authorities, Kerr LJ said at page 19:
"In my view what these authorities show is that there may be vi -- a forceful exercise of the user -- in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious."
" . . . made it sufficiently clear that the claimant was not acquiescing in the applicants' user of its land. It follows that the applicants' user of the site did not continue to be 'as of right' after the withdrawal of their first application on 8th June 2001."
However, it should be noted that the landowner's 'opening shots' in that particular war with the applicants for registration had apparently been wholly successful (see paragraph 71). What is the legal consequence if the 'opening shots', whether by correspondence or by the erection of notices, are not successful is less clear. In R (Beresford) v Sunderland City Council  1 AC 889 Lord Walker referred (obiter) to the:
" . . . paradox that a trespasser (so long as he acts peaceably and openly) is in a position to acquire rights by prescription, whereas a licensee, who enters the land with the owner's permission, is unlikely to acquire such rights. Conversely, a landowner who puts up a notice stating 'Private Land -- Keep Out' is in a less strong position, if his notice is ignored by the public, than a landowner whose notice is in friendlier terms: 'The public have permission to enter this on foot for recreation, but this permission may be withdrawn at any time'."
"It seems to me a user ceases to be user 'as of right' if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner's knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user."
That case was concerned with a right of way, not a village green, and was not concerned with the effects of erecting a notice. While I would not question the general proposition, it is of limited relevance in the present case because the key question is whether, given their wording, the notices erected on the land were prohibitory notices, ie, whether they made sufficiently clear to local users that the defendant was not acquiescing in their use of its land for recreational purposes.
" . . . were in place long enough for regular users of the Report Land to know of them. Indeed, it seems that they caused a stir locally because of the implication that local people using Coatham Common were trespassers. They also received publicity in the local newspaper ."
Thus, whatever the message that was being conveyed by the notices, it was sufficiently brought to the attention of those who were using the land for recreational purposes.
"'Force' does not just mean physical force. User is by force in law if it involves climbing or breaking down fences or gates, if it involves ignoring notices prohibiting entry, or if it is under protest. There is a dictum in the Beresford case that assumes that user can be as of right notwithstanding that it involves ignoring the prohibitory notice. There was no argument on that point in the House of Lords and, in my view, the assumption is contrary to principle. It was held by the Court of Appeal in the Trap Grounds case that a prohibitory notice prevented user as of right."
But there is no analysis of the wording of the notices beyond the statement in paragraph 217 of the report that they "made it clear that the club was asserting that the local users were trespassers". I accept that a notice may combine both functions: prohibition and warning. However, in my judgment, a notice which told the local users that they were trespassers but did not tell them to stop trespassing, and instead warned them that it was dangerous to continue to trespass (because they might be struck by golf balls), would not be sufficient to make it clear to them that the defendant was not acquiescing in their recreational user of the land. Rather it would be an indication that since the defendant was acquiescing in their trespassory use of the land for recreational purposes, it was thought prudent to warn them that if they continued so to use the land then they did so at their own risk, and the defendant could not be liable if they were hit by a golf ball.
Ground 2: Deference
" 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 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."
Under the sub-heading "Use of Report Land by Non Golfers", Mr Chapman's finding of fact was:
" 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 north-south from Church Street to the gap in the fence in Majuba Road. However, I am satisfied that the open parts of the Report Land has 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."
Under the sub-heading "Relationship Between Golf and Other Use", the finding of fact was:
" 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."
That finding of fact led to Mr Chapman's conclusions in paragraph 221 (see above) which he reconsidered in paragraph 3.2 of the further report in the light of Lord Hoffmann's opinion in the Oxfordshire case (see above).
(1) While two rights to use land for low-level agricultural activities such as growing a hay crop and a customary right to indulge in local sports and pastimes on the land could co-exist before the enactment of section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 ("the 19th century" or "the Victorian legislation"), they could not co-exist following the enactment of the 19th century legislation. "Given the restrictions imposed by sections 12 and 29 [even] grazing would have to be very low key indeed . . . in order to be lawful and compatible with the establishment of village green rights" [see paragraph 67 of the judgment].
(2) " . . . 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 [the farmer'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 [paragraph 82 of the judgment]."
In paragraph 84 I said:
"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."
In paragraph 85, after referring to the effect of the 19th century legislation, I said that such a user for sports and pastimes (ie, one which did not interfere with the way in which the owner had chosen to use his land):
" . . . 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."
In paragraph 86 of the Laing case, I concluded:
"I do not consider 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."
"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 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 cultural 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 para 141 of the judgment of Judge Howarth in Humphreys v Rochdale Metropolitan Borough Council (unreported) 18th 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."
Although this particular issue is not referred to in the other opinions, there is nothing in them which might suggest any disagreement with the views expressed by Lord Hoffman in paragraph 57 of his opinion.
"Mr Davis accepted that some members of the public had deferred to golfers; he also stated that he had deferred to them. He would not throw his frisbee if golfers were taking their shot and vice versa. There had been a mutual respect for each other, with the exception of ex-Squadron Leader Kime, the persons who had defaced the signs, and one or two of the golfers. They had gotten on with each other for 20, 30, to 60 years.
Mr Davis stated that the golfers had been deferred to out of politeness but in the main there had been no deference in any way, shape or form. [Emphasis added as in the claimant's skeleton argument]."
"There was an amicable relationship between the golfers and local people. When Mr Davis and his family were on the common, they took care not to interfere with the golf. Mr Davis could only recall two or three occasions when golfers shouted at him or his family. These were warning shouts of 'fore'. Often local people used the common in the early morning or the evening when golf was not being played."
There was one witness, Mrs Alton, who had asserted that the golfers deferred to her. However, Mr Chapman did not accept her evidence on that point:
" Mrs Alton's evidence about the relationship between the golfers and other recreational users was not wholly consistent. In her evidence in-chief, she said that the other users had priority and that the golfers would stand back if she walked on the golf course. There was only one occasion when she had been ordered off the golf course by a golfer. She told him that she had every right to be there and later telephoned the secretary of the golf club to complain. He apologised profusely. When cross-examined by Miss Crail, she said that at weekends there were golf competitions and she respected them. At those times, the golfers did not stand back.
 Mrs Alton's evidence that golfers generally gave way to other users of the Report Land is out of line with the evidence of many other witnesses whose evidence I prefer on this point. However, I accept the rest of her evidence."
" In 1970/71 Mr Judson worked as a green keeper for the golf club. There were regularly dog walkers on the golf course. His instructions were to ask the public not to walk on the fairways and greens, but there were in fact no problems with the public and he never had to ask a member of the public not to use the land. He used to cut the greens once or twice a week with a big lawnmower and cut the fairways weekly with a gang mower. The rough was cut about twice a year. The greens were top dressed about 12 times a year. There were no animals on the land except that horses were sometimes led on the land."
I realise that Mr Judson's evidence related to 1970/71 but there was no suggestion that it was in any way untypical in respect of the period under consideration.
The Additional Ground of Challenge
"16A. Alternatively, if the Inspector's conclusion on deference was justified, both he and the registration authority erred in law in not considering and determining, in the light of all the evidence, whether the inference to be drawn from such deference applied in respect of the inhabitants' user of all, or only part, of the application site."
I refused that application. While I accept that the defendant as registration authority had power to register a different area of land than that which was originally applied for in the second application (see paragraph 61 of the Oxfordshire case per Lord Hoffmann), it was under no obligation to reformulate the case as presented by the applicant for registration, and if it had been minded to do so it would have had to have acted fairly to all parties, including itself as landowner (ibid).