Owners of sports and other recreational land should take particular care to ensure that members of the public do not enjoy rights over their land in light of the recent decision of R v Redcar and Cleveland Borough Council concerning the registration of land as a town and village green.
Land can be registered as a town and village green if a significant number of people in a locality or neighbourhood have used the land "as of right" for the purposes of lawful sports and pastimes for a period of at least 20 years and they continue to do so at the time of the application.
Any person can apply to have land registered as a village green, not just the owner or occupier of the land, meaning that a private piece of land can become the subject of an application made by a member of the public.
If a piece of land is registered as a town and village green, the owner of that land is obliged to maintain the land as a village green. Any use that the landowner wishes to make of that land must be exercised in a manner which is complimentary to the use for public recreation and any development which the landowner may wish to carry out on the land must not interfere with that use. Registration of land as a town and village green therefore places a considerable burden on the landowner.
The case of R (on the application of Lewis) v Redcar and Cleveland Borough Council highlights how the town and village green regime can be particularly problematic to landowners in the sport and leisure industry.
In this case, the Supreme Court held that part of a private golf course could be registered as a village green because members of the public had used the course for recreational activities, such as dog-walking and childrens games. This case was contentious and it was originally argued that the use of the land by the public was secondary to its main use as a golf course.
However, the Supreme Court overruled this argument deciding that, although the habits of the members of the public using the land were affected by the golfers, they were just acting with "courtesy and common sense", rather than indicating any inferior right to use the land. The members of the public were therefore using the land as of right and the land was registered as a town and village green, meaning that the use of the land as a golf course could only continue if it did not adversely effect the publics enjoyment of the land.
This case shows how important it is for landowners, particularly those whose land is used for recreational activities, to be aware of who is making use of their land and to ensure that members of the public are not accessing the land as of right. There are a number of steps that landowners should take, such as erecting signs to make clear that members of the public do not have a general right to use the land.
However, another recent case has indicated that signs are not alone sufficient, and landowners should take other steps, such as effectively fencing off the land, making sure they know who makes use of the land at all times and ensuring that any member of the public seeking to use the land as of right is removed from the property.
Individuals in the sport and leisure industry who are considering buying a piece of land will need to check that the land is not registered as a town and village green. Even if the land is not so registered, purchasers must carefully consider the prior use of the land, particularly if the land has been used for recreation in the past, to ensure that there is no chance that an application will be made.
This is a very important aspect for purchasers to consider as subsequent registration as a town and village green could substantially reduce the value of the land and/or make the intended use impossible.