R (Lewis) v Redcar & Cleveland Borough Council and Another (No. 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Rix,Lord Justice Laws |
| Judgment Date | 15 January 2009 |
| Neutral Citation | [2009] EWCA Civ 3 |
| Docket Number | Case No: C1/2008/1918 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 2009 |
[2009] EWCA Civ 3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Sullivan J.
Before : Lord Justice Laws Lord Justice Rix
and
Lord Justice Dyson
Case No: C1/2008/1918
Charles George QC and Jeremy Pike (instructed by Irwin Mitchell Solicitors) for the Appellant
George Laurence QC (instructed by Redcar and Cleveland Borough Council, Legal and Democratic Services Division) and Ross Crail (instructed by Ward Hadaway Solicitors) for the Respondents
Hearing date: Tuesday 25 November 2008
Lord Justice Dyson:
This is an appeal with the permission of Sullivan J against his decision to refuse an application for judicial review of the decision of Redcar and Cleveland Borough Council (“the Council”) not to register part of the land known as Coatham Common, Redcar (“the Application Site”) as a town green under the Commons Act 2006 (“the 2006 Act”).
On 1 March 2005, the appellant and 3 other local residents applied (“the first application”) for the registration of the Application Site as a town green under the Commons Registration Act 1965 (“the 1965 Act”). The Council appointed Mr Vivian Chapman QC as an Inspector to hold a public inquiry and provide a report and recommendation to the Council as to whether the application should succeed. The Inspector recommended that the Application Site should not be registered for two reasons. First, he found that the fact that certain signs had been erected on the Application Site in 1998 and in 2003 meant that local inhabitants' use of the Application Site was not “as of right” within the meaning of section 22(1) of the 1965 Act, at least in the period during which the signs were in place. Secondly, he found that local inhabitants' use of the Application Site was not “as of right” because it “deferred” to the extensive use of the land by the Cleveland Golf Club to which the Council had leased the Application Site until 200The Council accepted the Inspector's recommendation.
On 9 June 2006, the Inspector produced a further report in the light of the House of Lords decision in Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674 (“the Oxfordshire case”). This report confirmed the previous recommendation.
On 8 June 2007, the appellant and others made an application for registration of the Application Site as a town green under the 2006 Act (“the second application”). For present purposes, the only material difference between the provisions of section 15 of the 2006 Act and those of section 22(1) of the 1965 Act is that reliance on the 2003 notices as a ground for rejecting the second application was precluded by section 15(4)(c), quoted in [6] below. The Inspector considered the second application in no fewer than 4 opinions and recommended that it should be rejected. On 19 October 2007, the Council rejected the application. On 18 January 2008, judicial review proceedings were issued to challenge this decision.
The judicial review application was heard by Sullivan J. He upheld the challenge to the first of the Inspector's reasons, but rejected the challenge to the second. Accordingly, he dismissed the application for judicial review. Mr Charles George QC on behalf of the appellant submits that the Inspector and the judge should have concluded that the use of the Application Site by the local inhabitants was “as of right” and that the notion of “deference” is an unwarranted judicial gloss on the meaning of that expression. There is no respondent's notice challenging the judge's decision on the first reason.
The relevant statutory provisions
Section 15 of the 2006 Act provides:
“(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), ( 3) or (4) applies.
…
(4) This subsection applies (subject to subsection (5)) where—
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the commencement of this section; and
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).”
The 2006 Act replaced the 1965 Act. The differences between the two statutes are not material to the issues that arise on this appeal. It is necessary to mention the 1965 Act only because (i) the principal authorities in this area of the law were decided in the context of the 1965 Act, and (ii) the first application for the registration of the Application Site as a town green was made under the 1965 Act.
Mr Chapman's reports
On 14 March 2006, Mr Chapman produced his report in respect of the earlier application under the 1965 Act. It is necessary to refer to this report because it forms the basis of his later recommendation that the application under the 2006 Act should be rejected. He wrote his first report after holding a public inquiry in Redcar over 6 days in December 2005 and January 2006. The report is long. It reviews the evidence in detail. At [170] to [177], Mr Chapman sets out his findings of fact. These include:
“ Use of Report Land by Golfers
[171] I find that, from as far back as living memory goes (at least as far back as the 1920s), the Report Land was continuously used as part of the Cleveland Golf Club links. The only exception is that the golfing was suspended during World War II. Golfing use ceased in 2002. I find that the club was a popular one and that the golf links were well used nearly every day of the year. In the years before 2002, the Report Land was used for the club house, the first and eighteenth holes and for a practice ground. There is some evidence that the precise configuration of the course changed somewhat over the years. The club house, tees, fairways, greens and practice ground did not, however, take up the whole of the Report Land and there were substantial areas of rough ground beside and between these features.
Use of Report Land by Non Golfers
[172] I find that from as far back as living memory goes, the open parts of the Report Land have also been extensively used by non golfers for informal recreation such as dog walking and children's play. Some of the walking has been linear walking in transit. Thus the informal paths running east-west have been used by caravan residents to get access to the centre of Redcar with its shops and public houses. Also, there is evidence of people taking a short cut south-north from Church Street to the gap in the fence in Majuba Road. However I am satisfied that the open parts of the Report Land have been extensively used by non golfers for general recreational activities apart from linear walking. I prefer the evidence on this point of the applicants' witnesses and of Mr Fletcher to the evidence of the objector's other witnesses that such use was occasional and infrequent.
…
[175] I find that the relationship between the golfers and the local recreational users was generally cordial. There was evidence of only a few disputes. Only Squadron Leader Kime seems to have caused problems by actively asserting a right to use the Report Land and the golf club appears to have tried to avoid any formal dispute with him. In my judgment, the reason why the golfers and the local people generally got on so well was because the local people (with the exception of Squadron Leader Kime) did not materially interfere with the use of the land for playing golf. Many of the applicants' witnesses emphasised that they would not walk on the playing areas when play was in progress. They would wait until the play had passed or until they were waved across by the golfers. Where local people did inadvertently impede play, a shout of “fore” would be enough to warn them to clear the course. I find that recreational use of the Report Land by local people overwhelmingly deferred to golfing use.”
At [178] to [209], he discusses the law. At [210] to [222], he applies the law to the facts. At [212], he says that the applicants have established that the Application Site (other than the public footpath) has been used for informal recreation by local people at least since 1970 and for more than 20 years. He then says that the recreational use (predominantly walking, with or without dogs, and children's play) has constituted “lawful sports and pastimes” as construed in R v Oxfordshire County Council ex p Sunningwell Parish Council [2000] 1 AC 335 (“the Sunningwell case”) and has been “as of right” in the sense that it was nec vi, nec clam, nec precario. At [221], he says:
“Leaving aside the public footpath, I consider that the reasoning in the Laing Homes and Humphries cases squarely applies to the Report Land in the present case. Use of the Report Land as a golf course by the Cleveland Golf Club would have been in breach of IA 1857 s. 12 and CA 1876 s 29 if the Report Land had been a town or village green. It was a use which conflicted with the use of the Report Land as a place for informal recreation by local people. It was not a use which was with a better view to the enjoyment of the Report Land as a town or village green. The overwhelming evidence was that informal recreational use of the Report Land deferred to its extensive use as a golf course by the Cleveland Golf...
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