On 3 March 2010 the UK Supreme Court handed down its decision in R (on the application of Kevin Lewis) v Redcar & Cleveland Borough Council & Anor  UKSC 11. This decision represents a (welcome) U turn in the law on the question whether deference by the recreational users of a claimed green to the use being made of the land by its owner has any relevance to whether or not the user “as of right” test is met. The Court of Appeal, whose decision in this case was reversed by the Supreme Court, had previously upheld the “judge-made law” (as acknowledged by Sullivan J who granted leave to appeal from his own decision in this case) which determined that where recreational users had deferred to use made by the landowner of his own land, that deference was sufficient to render the user relied upon not as of right (which is a prerequisite for a prescriptive claim).
The Supreme Court was having none of it, and rightly so. The introduction of this qualification had overcomplicated the as of right test which is at the heart of any claim based upon the doctrine of prescription. Not only was it creating a chasm between the user as of right test in the context of new green registration applications and the other contexts in which the as of right test is applicable (ie the prescriptive acquisition of easements, public rights of way and profits a prendre), it was also defeating the purpose of the Commons Act 2006 which exists to facilitate the registration of new greens when the particular statutory requirements are met.
It is no doubt as a result of the increased number of new green registration applications that the Inspectors (who chair public inquiries into the registration of new greens) and the courts have become a little sceptical about the validity and purpose of such applications. However, on this subject Lord Walker had this to say at paragraph  of his speech:
Disparaging references are sometimes made to the “village green industry” and to applications for registration being used as a weapon of guerrilla warfare against development of open land. The House of Lords has (both in Beresford and Oxfordshire) expressed some doubt about the extension of town or village green protection to land very different (both in size and appearance) from a traditional village green. However, in the Commons Act 2006 Parliament has made it easier, rather than more difficult, to register a green…
It is the suspicious approach to the proliferation (and likely continued proliferation) of new green registration applications that had no doubt given rise to the court’s acceptance that the user as of right test could and should be qualified by the concept of deference, not least because it would be a way of curtailing the number of applications which might otherwise succeed. However, qualifications to well established legal tests should only be acknowledged when they have some genuine legal basis, which deference did not.
The decision of the Supreme Court is to be welcomed. It was acknowledged that where two uses (the use of the landowner and the use of the recreational users) coincide there may be occasions when the two rights of user cannot be enjoyed simultaneously; the deference of one party to the other’s use simply being a matter of courtesy. Nothing more than that. Even more pleasing is the fact that Lord Hope, at paragraph  of his speech, referred to my article in which I had criticised the Court of Appeal’s decision in this case!