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 pastimes on the land for a period of at least 20 years’.

Earlier this year we noted the important Supreme Court decision of R (on the application of Lewis) v Redcar and Cleveland Borough Council & anor [2010] UKSC 11. There it was held that local people had been using a local area ‘as of right’ even though they had always deferred to its use by golfers (and left the land when asked to do so by golfers). The High Court and CA had held that the use by the local population had not be ‘as of right’ since the locals had deferred to the golfers; the Supreme Court disagreed, taking the view that the words ‘as of right’ meant the same as those in Prescription Act 1832 (ie if the use of the common was ‘without force, secrecy or permission’ then it would be ‘as of right’). Thus, 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 that use – unless the owner can show that the use was ‘with force, secrecy or permission’.

The end result is that this is a very relaxed test, and there will be many instances now where local people will be able to assert that land has been used ‘as of right’. That, in turn, leads to the question of what landowners can do to protect themselves from such potential applications.

The first thing is to ensure that where uses have been expressly authorised (eg golfing) it is only those activities that take place. The owner should ensure that the land is suitably fenced to prevent any unauthorised access, and be vigilant to stop any trespass (even where the land is simply being used as a shortcut, and perhaps for walking dogs). It will also be important to ensure that the land is suitably enclosed (with gates and fences regularly maintained) and with appropriate signs displayed in prominent areas – so it is clear that access without the express permission of the owner is strictly prohibited.

If the owner is granting a lease of the land then the lease should limit the risk of unauthorised access by imposing appropriate obligations on T (eg an obligation to carry out regular maintenance on signs and fences).

Remember that applications for registration can now be made up to two years, and sometimes even five years, after the land ceased to be used for ‘sports and pastimes’. From a buyer’s point of view it is important to make specific enquiries of the seller to establish whether any recreational uses have taken place within the last five years. Specific enquiries should also be raised about signs, fences, gates, etc and whether these had been maintained. A full inspection will have to be carried out and it might be appropriate to delay the purchase, extend any contractual periods, and use that additional time to try to persuade the seller to erect signs and gates to flush out any potential applications. At the same time, the seller will have to give thought as to whether indemnities should be obtained from the seller, or whether a retention should be sought.

At the end of the day, those buying open land that might possibly have been used for ‘sports and pastimes’ need to take extra care; as the law now stands, the question is whether a reasonably alert owner should have recognised that there was an assertion of a right, which would then mature into an established right unless the owner took action to stop it. See article in [2010] 251 PLJ 2.