Developing Village Greens

In a landmark development the new Supreme Court, which recently replace the House of Lords as the final court of appeal in England and Wales, has overturned decisions of both the High Court and the Court of Appeal as to registration of a piece of land in Redcar as common land.

The land was owned by the local council and for 80 years until 2002 it had formed part of a golf course but, as is often the case with such land, was also used by locals to walk dogs, play games and have picnics. The golfers appear to have had priority, the locals waiting until play had passed or the golfers indicated it was safe for them to carry on and surprisingly the golf and local use seem to have co-existed without any problem.

Development of the land was proposed and some locals applied to register the land under the 2006 Commons Act.

The Inspector appointed to decide whether to register as common concluded that the locals deferred to the golfers and therefore the elements required for common land were not made out. He rejected the application to register and he was upheld by both the High Court and the Court of Appeal.

The case turned on whether the locals use was “as of right”. The Supreme Court decided that the locals deference to the golfers did not prevent them from having used it “as of right” because they had regularly, in large numbers, crossed the fairways and walked on the rough areas.

Although the case is decided on its own facts, those facts may well be repeated wholly or partly in respect of many areas of open ground all over the country and the case makes it easier for locals to register commons and more difficult for developers to prevent registration.

Developers need therefore to be very alert to the present and indeed recent past use of any land they are considering for development which is not built on or well enclosed.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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