| COMMONS — Town or village green — Registration — Landowner operating golf course — Land also used by non-golfers — Notices warning of danger —Whether user by non-golfers had been as of right — Inclosure Act 1857, s 12 — Commons Act 1876, s 29 — Commons Act 2006, s 15
R (Lewis) v Redcar and Cleveland Borough Council; [2008] WLR (D) 246
QBD : Sullivan J : 18 July 2008
Where, in relation to a question whether user of land had been user as of right, the issue of deference arose as between a landowner and other people making use of the land, the question was how the position would have appeared to the landowner, rather than to the other users, and what would matter to the landowner would be the fact of deference, not the reasons for it.
Sullivan J so held when dismissing a claim for judicial review by Kevin Lewis of a decision made on 19 October 2007 by Redcar and Cleveland Borough Council to reject an application to register as a town or village green under s 15 Commons Act 2006 land known as Coatham Common which had formerly used as a golf course.
SULLIVAN J said that the land had been the subject of other proceedings, relating to applications for planning permission, but the present proceedings concerned a refusal to register the land as a town or village green. The land, owned by the defendant, had been used as a golf course until 2002, but had also been used both for leisure purposes such as walking and for linear walking, and that had continued after notices had been put up in 1998, stating “Warning – It is dangerous to trespass on the golf course”. The decision under review had been made following advice of Vivian Chapman QC. Two issues were raised. The first was whether the notices had been prohibitory of entry on the land by non-golfers, or were mere warnings of danger. On their wording no landowner could reasonably have concluded that their terms prohibited recreational use. The second issue was whether the non-golfers’ use of the land had not been as of right by reason of their having deferred to those playing golf. This raised questions concerning s 12 of the Inclosure Act 1845 and s 29 of the Commons Act 1876. The related observations of Lord Hoffmann in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674, especially at para 57, were obiter, but were to be followed. The question was what were the inferences which would reasonably be drawn by the landowner. Mr Chapman’s conclusion that there had been overwhelming deference to golf use was one which had reasonably been open to him. The claimant contended that the reasons for the non-golfers’ attitude were simply personal safety and courtesy, but what mattered was the fact of deference, not the reasons for it.
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