Court orders local council to register town common as village green: new cases to be revisited

The Open Spaces Society is 'delighted' at the recent unanimous judgment from the Supreme Court which orders Redcar and Cleveland Borough Council to register Coatham Common as a village green. The six-year-old battle by residents in Redcar to save the space from developers has now been won.

The society backed local inhabitants in their bid to register the land. Says Open Spaces general secretary, Kate Ashbrook: ‘This monumental decision clarifies the law on registering land as new greens. The Supreme Court has said beyond all doubt that use of land as a green can coexist with the landowner’s activities.

This judgement paves the way for other 'village green-related' cases to be reviewed. Hopes are high, for example, that the planning inspector who led the inquiry into Brixham's controversial Wishings Field will confirm his backing for campaigners battling for a village green following the results of a landmark test case.

William Webster made a provisional recommendation to register the land, also known as Pathfields, as a village green, and said he would revisit his decision following the outcome of the national Supreme Court test case appeal over the seafront open space at Redcar.

Mr Webster is now reviewing his decision and is expected to announce his final decision in the next two weeks.

Torbay Council has confirmed its D-Day for a ruling on the matter will be May 12.

‘In the past, applications have been rejected merely because the local people were civil and deferred to the use by the landowner—whether he was making hay or playing golf. We considered it unfair that people should be penalised for being polite, but it was proving a major problem for people wishing to record their recreational rights by registering land as a green.’

In order for land to be registered as a green, local people need to show that a significant number of them have used the land ‘as of right’, ie freely, for informal recreation for at least 20 years. In 2005 and again in 2007, Mr Kevin Lewis and four other residents applied to register land at Coatham Common, which until 2002 was used as a golf course, as a green. They produced evidence that they had used the land for recreation for 20 years, without being stopped and without asking permission.

The application was rejected by the registration authority, Redcar and Cleveland Borough Council, and Mr Lewis’s appeals to both the High Court (2008) and Court of Appeal (2009) were rejected.

The principal ground for rejection by all three authorities was that, in using the land for informal recreation, local people had given way to the golfers, so their use had not been ‘as of right’. The five Supreme Court judges were of a different view, and THEY have allowed the appeal.

Giving the leading judgment, Lord Walker said: ‘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 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…with courtesy and common sense [paragraph 36].’

Both Lords Walker and Rodger observed that registration of land as a green would be unlikely to result in a change in its use by local inhabitants (paragraphs 47 and 84).