R (Lewis) v Redcar & Cleveland Borough Council and Another (No. 2)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD WALKER,LORD KERR,LORD RODGER,LORD BROWN,LORD HOPE
Judgment Date03 Mar 2010
Neutral Citation[2010] UKSC 11

[2010] UKSC 11

THE SUPREME COURT

Hilary Term

On appeal from: 2009 EWCA Civ 3

before

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lord Brown

Lord Kerr

R (on the application of Lewis)
(Appellant)
and
Redcar and Cleveland Borough Council

and another

(Respondents)

Appellant

Charles George QC

Jeremy Pike

Cain Ormondroyd

(Instructed by Irwin Mitchell)

1st Respondent

George Laurence QC

Rodney Stewart Smith

(Instructed by Redcar and Cleveland Borough Council)

2nd Respondent

Ross Crail

(Instructed by Ward Hadaway)

LORD WALKER

The issue

1

Section 15 of the Commons Act 2006, so far as relevant to this appeal, provides as follows:

15. Registration of Greens

(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.

(2) This subsection applies where–

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

(b) they continue to do so at the time of the application.

(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).

(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied-

(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and

(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right".

The application relevant to this appeal was expressed to be made under section 15(4). It was suggested in argument that (because of the "deeming" provision in subsection (7)) it was also, or alternatively, made under subsection (2). In any case it was a valid application, and neither subsection (5) nor subsection (6) is in point.

The issue

2

The general issue for the Court is whether a piece of open land next to the sea in Redcar ought to have been registered as a town green under section 15. For at least 80 years before 2002 the land in question ("the disputed land") formed part of a golf course in regular use by members of the Cleveland Golf Club, whose trustees were tenants of the course. The inspector who held a public inquiry found as a fact that when local residents using the disputed land for recreation encountered members of the golf club playing golf, the former "deferred" to the latter. In these circumstances the legal issue for the Court can be more particularly stated as whether the legal consequence of this deference was that the local residents were not indulging in recreation "as of right" within the meaning of the Commons Act 2006.

3

During the last decade there have been three important decisions of the House of Lords dealing with different aspects of the law (as it stood before the Commons Act 2006) as to town and village greens: R v Oxfordshire County Council Ex p Sunningwell Parish Council [2000] 1 AC 335 ("Sunningwell"); R(Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889 ("Beresford"); and Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674 ("Oxfordshire"). In none of these appeals did the House of Lords have to decide the point now at issue, although both sides have placed reliance on some passages in their Lordships' opinions. The Commons Act 2006 (which is still not fully in force) makes important changes in the law, but does not directly affect the issue of deference.

The facts

4

The appellant, Mr Kevin Lewis, is one of five local residents who made the application for registration of the disputed land under section 15 of the Commons Act 2006. The first respondent, Redcar and Cleveland Borough Council, has a dual capacity, being both the registration authority and the freehold owner of the disputed land. The second respondent, Persimmon Homes (Teesside) Ltd is an interested party. It has since 2003 been the Borough Council's development partner in the Coatham Links coastal regeneration project. The project is for a mixed development for residential and leisure purposes on a site extending to 14 hectares. The disputed land forms an important, and possibly indispensable, part of the development site. The appeal is therefore of great importance to the parties, as well as raising a point of law of general public interest.

5

Redcar is on the south side of the Tees estuary. The disputed land is part of an area known as Coatham Common or Coatham Links (Coatham was originally a separate village but is now part of Redcar). On the south (landward) side of the disputed land there is a mainly residential area. To the east is the site of the former club house and a leisure centre (the club house site is not included in the disputed land but was included in the earlier application mentioned below). To the west is more open land still used as a golf course. To the north is the beach and the North Sea. The disputed land formerly included the tees, fairways and greens of the first and eighteenth holes, and a small practice area.

6

The inspector's report dated 14 March 2006 described the boundaries in more detail and contained (paras 6 and 7) this further description of the disputed land (referred to as "the Report Land"):

"The character of the Report Land is typical of coastal sand dunes, with irregular sand hills covered in rough grass. The dunes are noticeably higher on the northern side. There is a flatter area along the southern side, particularly west of the Church Street access. The former tees, greens and fairways of the golf course are no longer obvious. The Report Land is crossed by numerous informal paths of which the most well used run alongside and close to the southern and northern boundaries. A number of photographs show the general nature of the land.

There are some fairly new signs erected by [the Borough Council] on the Report Land. The gist of the signs is that they give the public temporary permission to use the Report Land for recreation pending its redevelopment. I call these signs 'the permissive signs'."

The footpath near the southern boundary is a public footpath.

7

Mr Lewis and his fellow applicants applied for registration of the disputed land on 8 June 2007, soon after section 15 of the Commons Act 2006 had come into force on 5 April 2007. It was not the first application that had been made in respect of the disputed land. An earlier application had been made by another group of local residents on 1 March 2005. It was therefore considered under the earlier law, that is the Commons Registration Act 1965 as amended by the Countryside and Rights of Way Act 2000. This earlier application was the subject of a public inquiry held by Mr Vivian Chapman QC as an inspector appointed by the Borough Council as registration authority. The inquiry was held over several days in December 2005 and January 2006. Mr Chapman produced a lengthy report dated 14 March 2006 recommending that the application should be refused, and the Borough Council accepted his recommendation. An application for leave for judicial review of that decision was refused on the papers by Collins J on 22 August 2006 and was not renewed.

8

When the second application was made in 2007 it was rightly thought that it was unnecessary, and would be a waste of time and money, to hold a second public inquiry, since it would be directed to the same factual issues. Mr Chapman did however (in connection with the first application) make a second report dated 9 June 2006 addressing the decision of the House of Lords in Oxfordshire (he advised that it made no difference to his conclusions, and that in any case it was not open to the Borough Council to reopen its decision).

9

The relevant findings of fact are therefore in Mr Chapman's report dated 14 March 2006 on the first application. The crucial findings are in paras 171, 172, and 175. These paragraphs are set out in full in the judgment of Dyson LJ in the Court of Appeal [2009] EWCA Civ 3, [2009] 1 WLR 1461, but they are of such central importance that they need to be set out again. Para 171 dealt with use of the disputed 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."

10

Para 172 dealt with use by non-golfers (that is, local residents):

"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...

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