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Supreme Court backs residents wanting to turn golf course into 'town green'

9 March 2010

A council golf course near the Tees estuary in Redcar must be registered as a ‘town green’ under the Commons Act 2006, the Supreme Court has ruled.

Redcar and Cleveland Council owned the land and had already granted outline planning permission for a mixed residential and leisure development.

Giving the leading judgment in R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11, Lord Walker said the case depended on interpretation of the phrase “as of right” in section 15 of the Commons Act 2006.

Lord Walker said he had “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.

“A reasonably alert owner of the land could not have failed to recognise that this user was the assertion of a right and would mature into an established right unless the owner took action to stop it (as the golf club tried to do, ineffectually, with the notices erected in 1998).”

Lord Walker said he was sceptical about the notion that, if the golf course was to be registered as a green, the residents’ attitude to the golfers would “suddenly turn from friendly civility to vindictive triumphalism”.

He went on: “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 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.”

Lord Walker allowed the appeal and ordered the council to register the land as a town green. Lords Hope, Rodger, Brown and Kerr agreed.

Charles George QC, planning and public law specialist at Francis Taylor Building, acted for Lewis, a local resident.

“This is a radical decision by any test,” he said. “Hitherto it has always been supposed that if the owner is carrying out activities for any part of the 20-year period and if people are adjusting their activities, you could not register the land as a village green.

“This will pose problems for people like farmers who don’t make very intensive use of the land. They have not been too fussed until now by trespassers walking dogs on their land and would often find it very difficult to keep them out.”

George said the risk of the land being registered as a village green was even greater if the land involved was part of a land bank owned by a house-builder.

He said it was clearly the intention of Parliament through the 2006 Act to make it easier to register village greens.

“There are a mass of public inquiries up and down the country,” he said. “Every week a member of chambers does a village green inquiry.”

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