The Supreme Court has handed down an important judgment about village greens, after unanimously finding that locals had been using a local area ‘as of right’, even though they had always deferred to its use by golfers (and left when asked to do so by golfers).

A village green can be registered if ‘a significant number of the inhabitants of any locality... have indulged as a right in lawful sports and pasttimes on the land for a period of at least 20 years’.

The land in question was a common that had been used until 2002 as a local authority golf course. Local inhabitants had used the common for recreational purposes (eg dog-walking and parents playing with children), although in practice they did not use the common if golf was in play and would leave if asked to do so by golfers. In due course, developers obtained planning permission for redevelopment, and one of the locals then applied to register the common as a village green. The High Court and CA refused the registration on the basis that use had not been ‘as of right’ since the locals deferred to the golfers. The Supreme Court disagreed; the deference of the locals to the golfers was merely an acceptance by the locals that, where two or more rights co-exist over the same land, there may be occasions where they cannot both be enjoyed at the same time. In the court’s view, the words ‘as of right’ mean the same as those in Prescription Act 1832 – so, if the use of the common was ‘without force, secrecy or permission’ then it would be ‘as or right’. So, if land is used for 20 years, to such an extent and in such a way that it would reasonably be regarded as being an assertion of a public right, then the owner will have acquiesced in the use – unless the owner can show that the use was ‘without force, secrecy or permission’.

This really is an extremely liberal interpretation of Commons Act 2006. Given that ‘sports and pasttimes’ can be as little as walking the dog and that ‘as of right’ can include situations where locals defer to the primary users of the land, it is not difficult to see that this interpretation is one that will be welcomed by many local campaigners, but deplored by many developers.

In practical terms, the best advice to a landowner is that (apart from completely fencing off the land), there should be clearly visible signs making it apparent that use of the land is by permission only. At the same time, developers buying open land should seek replies to enquiries from the sellers that the land has not been used in such a way that would support an application for registration under Commons Act 2006. Lewis v Redcar [2010] UKSC 11 (access free at www.practicalconveyancing.co.uk).