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Post-registration Rights and Management

Document Cited authorities 23 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages65-71
Chapter 10


Post-registration Rights and Management

RIGHTS AFTER REGISTRATION

10.1 Although the CA 2006 has made it easier to register land as a village green, it does not elucidate on the scope of the rights of landowners and local inhabitants after registration, nor explain, for instance, why there needed to be a link with a locality or a neighbourhood within a locality (neither of which terms are defined in the CA 2006). Questions also arise on the extent to which land can be used at the same time by landowners and local inhabitants (and especially if the competing uses are plainly incompatible) if registration is to be justified.

10.2 In Oxfordshire County Council v Oxford City Council,1Lord Hoffmann said that although the landowner is not excluded from his land and must not interfere with the locals recreating on his land, there still had ‘to be give and take on both sides’. In other words, a landowner is not excluded from his land altogether once it has been registered and is still entitled to use it in any way which does not interfere with the recreational rights of local inhabitants. In practice, however, there is a massive mismatch between what an applicant has to do to obtain registration and the enduring practical and financial consequences of this upon the landowner.

10.3 The law was considered by the Supreme Court in R (Lewis) v Redcar and Cleveland BC (No 2).2Lord Walker doubted whether, in practice, registration would lead to a sudden diversification or intensification of use by local residents. He said3‘Even without such regulation, conflicts over competing uses … are capable of resolution by the constant refrain in the law of easements that between neighbours there must be give as well as take’.

10.4 Lord Hope was no clearer about this than Lord Walker was, and he said4

that ‘it was Parliament’s intention that practical common sense would be the best guide to the way the public right was to be exercised once the land had been entered on the register’. This does not answer the question of what is to happen if the two uses cannot practically be enjoyed simultaneously. Lord Hope did, however, say5that if local inhabitants ‘were to exercise their rights by way of all

1[2006] UKHL 25, [2006] 2 AC 674 at [51].

2[2010] UKSC 11, [2010] 2 AC 70.

3[2010] UKSC 11, [2010] 2 AC 70 at [48].

4[2010] UKSC 11, [2010] 2 AC 70 at [56].

5[2010] UKSC 11, [2010] 2 AC 70 at [76].

66 Restrictions on the Use of Land

take and no give in a way to which legitimate objection could be taken by the landowner they could, no doubt, be restrained by an injunction’.

10.5 Lord Brown said,6more helpfully, that the effect of registration was to entrench the rights of the locals ‘precluding the owner from thereafter diminishing or eliminating such rights but not at the expense of the owner’s own continuing entitlement to use the land as he has been doing’. The rationale for this is that the owner’s previous use ex-hypothesi would not have been such as to prevent the locals from satisfying the requirements for registration. Lord Brown continued:7

Of course, in so far as future use by locals would not be incompatible with the owner continuing in his previous use of the land, the locals can change, or indeed increase, their use of the land; they are not confined to the same ‘lawful sports and pastimes’, the same recreational use as they had previously enjoyed. But they cannot disturb the owner so long as he wishes only to continue in his own use of the land (perhaps as a golf course or taking a couple of hay crops a year off the land).

10.6 Lord Brown then added8that, in the case of golfers and walkers, ‘Harmonious co-existence is in practice easily achievable’.

10.7 Lord Kerr was of the same view, where he said:9

where it is feasible, co-operative, mutually respecting uses will endure after registration. Where the lands have been used by both the inhabitants and the owner over the pre-registration period, the breadth...

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