The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had managed a golf course on the land without objection from the claimants, and that therefore the use of the land by the residents had not itself been as of right.
Held: The residents’ appeal succeeded, and the land should be registered as a green. The question whether user was as of right was to be determined solely by reference to the tripartite test: that the user must be nec vi, nec clam and nec precario. The fact that residents had accommodated the use of parts of the land as a golf course did not prevent their use being as of right. Although the local residents’ private beliefs as to their rights are irrelevant, the same is not true of their outward behaviour on the land in question.
The local inhabitants’ rights to use a green following registration could not interfere with competing activities of the landowner to a greater extent than during the qualifying period.
Lord Hope said: ‘the English theory of prescription is concerned with ‘how the matter would have appeared to the owner of the land’ . . But I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility (or, in the inspector’s word, deference) towards members of the golf club who were out playing golf. It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted (as all the members of the Court agree, in much the same terms) with courtesy and common sense. But courteous and sensible though they were (with occasional exceptions) the fact remains that they were regularly, in large numbers, crossing the fairways as well as walking on the rough, and often (it seems) failing to clear up after their dogs when they defecated. ‘
Lord Walker confirmed that: ‘ ‘as of right’ is sufficiently described by the tripartite test nec vi, nec clam, nec precario established by high authority’. Persons claiming to have acquired a right by prescription ‘must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him’.
Judges:
Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
Citations:
[2010] UKSC 11, UKSC 2009/0127, [2010] NPC 27, [2010] 2 All ER 613, [2010] 10 EG 116, [2010] BLGR 295, [2010] 2 WLR 653, [2010] 2 AC 70
Links:
Statutes:
Commons Act 2006 15, Housing Act 1985
Jurisdiction:
England and Wales
Citing:
At First Instance – Lewis, Regina (on the Application of) v Redcar and Cleveland Borough Council Admn 20-Dec-2007
The claimant sought registration of an open area as a Commons under the 2006 Act. Until 2002 it had been tenanted by a golf club. The inspector had recommended against registration, saying that the use by the public for lawful pastimes had been for . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Regina (Laing Homes Ltd) v Buckinghamshire County Council Admn 8-Jul-2003
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.
Held: The Act was not intended to prevent the owner using the land in a way which . .
Cited – Humphreys v Rochdale Metropolitan Borough Council Admn 18-Jun-2004
Acts of grazing and fertilising by the owner which 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. . .
Appeal from – Lewis, Regina (on the application of) v Redcar and Cleveland Borough Council and Another CA 15-Jan-2009
The claimants sought registration of land as a common, saying that it had been used by the local residents for social activities for many years. The council had licenced the land for use as a golf course for many years.
Held: The residents’ . .
Cited – Fitch v Fitch 1798
The defendants had trampled the grass on a common which the owner had mowed, thrown the hay about and mixed some of it with gravel.
Held: The court considered the rights arising from land being declared to be a common: ‘The inhabitants have a . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Cited – Regina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
Cited – Gardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
Cited – Bright v Walker 1834
Where a way had been used adversely and under a claim of right, for more than twenty years, over land in the possession of a lessee who held under a lease for lives granted by the Bishop of Worcester. Held that under the act 2 and 3 Will. 4, c. 71, . .
Mentioned – Hollins v Verney 1883
A private right of way was claimed under the 1832 Act by virtue of use to remove wood from an adjoining close. . .
Cited – Hollins v Verney CA 1884
A claim for a presumption of a lost modern grant must include an assertion that the enjoyment of the carriageway was continuous or uninterrupted. Lindley LJ said: ‘It is difficult, if not impossible, to enunciate a principle which will reconcile all . .
Cited – Bridle v Ruby CA 1989
The plaintiff was able to establish a right of way by prescription despite his personal belief that he had such a right by grant.
Ralph Gibson LJ said: ‘For mistake as to the origin of the right asserted by the user to be relevant, it seems to . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd SCS 1992
(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Henderson v Volk 1982
(Court of Appeal of Ontario) Cory JA said: ‘It is different when a party seeks to establish a right-of-way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient . .
Cited by:
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – Adamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 15 May 2022; Ref: scu.402003