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

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

Deference by local inhabitants to golfers did not negate the assertion of a right. The tripartite test (nec vi, nec clam, nec precario) is sufficient. Where recreational use is open, peaceable, and without permission, it is 'as of right' even if users accommodate concurrent use by the owner. Registration does not...

Source-derived case information.

Parties
Appellant: Kevin Paul Lewis; 1st Respondent: Redcar and Cleveland Borough Council; 2nd Respondent: Persimmon Homes (Teesside) Ltd
Jurisdiction
England and Wales
Judgment Date
03 March 2010
Procedural Posture
Judicial Review (appeal) / Supreme Court Judgment
Outcome
Appeal allowed
Legal Topics
Commons Act 2006, Town and Village Greens, Prescription, Public Rights, Deference Doctrine
Land Law Administrative Law Commons Act 2006 Town and Village Greens Prescription Public Rights Deference Doctrine

Source-derived case record

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Parties

Kevin Paul Lewis

Appellant

Redcar and Cleveland Borough Council

1st Respondent

Persimmon Homes (Teesside) Ltd

2nd Respondent

Procedural Posture

Judicial Review (appeal) / Supreme Court Judgment

Legal Issues

  1. 1 Whether local inhabitants' recreational use of land, which deferred to concurrent golfing use, was 'as of right' under section 15 of the Commons Act 2006 and sufficient for registration as a town or village green.

Ratio Decidendi

Deference by local inhabitants to golfers did not negate the assertion of a right. The tripartite test (nec vi, nec clam, nec precario) is sufficient. Where recreational use is open, peaceable, and without permission, it is 'as of right' even if users accommodate concurrent use by the owner. Registration does not extinguish the owner's compatible use; rights coexist subject to give and take.

Court Disposition

Appeal allowed

Orders

  • Redcar and Cleveland Borough Council to register the disputed land as a town green under section 1 of the Commons Act 2006 or applicable transitional provisions.