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 [2010] 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 [48] 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 [76] of his speech, referred to my article in which I had criticised the Court of Appeal’s decision in this case!
Rowena Meager's Property Law Blog 
Congratulations on having your article referred to. Its nice to have the Supreme Court agreeing with you.
By: Francis Davey on March 22, 2010
at 5:50 pm
Thanks Francis – I confess to having had a “smug moment”! RM 🙂
By: RM on March 22, 2010
at 8:29 pm
[…] 2010: The Year of the New Town or Village Green? It looks as though 2010 could well be another very significant year for the development of the law on the registration of new town and village greens (now governed by the Commons Act 2006, previously the Commons Registration Act 1965). In January the Supreme Court of the United Kingdom will hear the appeal in R (on the application of Kevin Lewis) v Redcar & Cleveland Borough Council & Persimmon Homes (Teeside) Limited [2009] EWCA Civ 3. This will be the fourth appeal in the context of the law on the registration of new town and village greens to come before the UK’s highest court in a little over a decade, the forerunners being Oxfordshire County Council v Oxford City Council [2006] UKHL 25, R (Beresford) v Sunderland City Council [2003] UKHL 60 and R v Oxfordshire County Council Ex parte Sunningwell Parish Council [1999] UKHL 28. The decision will hopefully provide some welcome clarity on the question of the relevance of deference by the qualifying user to the landowner’s use of his own land and the relationship between such deference and the user as of right test which test is central to any prescriptive claim. Update: the decision in Redcar was handed down on 3 March 2010 – for a post on that decision see here. […]
By: 2010: The Year of the New Town or Village Green? « Rowena Meager's Property Law Blog on March 23, 2010
at 8:30 am
That saves me. Thanks for being so sebsnile!
By: Estella on May 23, 2011
at 12:27 am
Many congratulations on being “referred to” by the Supreme Court. Your blog is a model of elegance and clarity and I have a look fairly often though to be honest I don’t think that I ever really mastered “fee simples”; “fees on condition” and “determinable fees” let alone the complexities of “settled land” and so on. Great stuff! Keep up the good work.
By: ObiterJ on March 24, 2010
at 10:44 pm
Thank you for your kind comments…
RM 🙂
By: RM on March 25, 2010
at 9:58 pm
Thanks for your interesting blog. As someone involved in a village green case in which deferring was supposedly an issue, until this case was decided, I can’t help feeling that the law has been a complete ass in all of this.
The Supreme Court has just said what must have been obvious to every lay person, that people who stopped for a golfer were not ‘deferring’ to the rights of the golfers so much as exercising common sense and avoiding injury. But because of the decisions of one judge followed by a few inspectors, this idiocy was allowed to run for years and years, wasting pounds and pounds of public money and knocking on the head many Village Green cases into the bargain.
Why does our system allow this idiocy? Surely there is a better and quicker way to get common sense into the legal system?!!!
But thanks to you for offering a human forum for all of this, and some human thinking to boot.
By: Stephen B on April 4, 2010
at 7:37 pm
I really wish that I had found this site before our Village Green went to inquiry, it would have made things so much easier and we might now not be having to try and take out a possible Judicial Review or other alternative action to protect our rejected Village Green
By: Sylvia Mason on June 8, 2013
at 10:07 pm