Developers: Beware Open Spaces (2)

Case law in relation to open spaces seems to be like buses. No sooner have we had the decision in Lewis, R (on the application of) v Redcar and Cleveland Borough Council & others (2010), developers now need to consider the case of R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council (Deluce, Whitmey & Booth Interested Parties) (2010).

This latest case dealt with:

1)      the effect of notices warning that there is “No Public Right of Way”

2)      whether registration of a new green depends on proving that users come from a specific locality

3)      whether the residents of other localities can gain any rights after a new green is registered

 The Facts:

Warneford Meadow in Oxford had been used by local people for recreational purposes for more than 20 years. There were 2 well defined paths crossing the meadow. In 1989 the landowner erected 2 signs reading “No Public Right of Way” and sited these so that they appeared to refer to the paths. In 2006 a resident applied to register Warneford Meadow as a new green after the landowner decided to develop the land. The land was subsequently registered as a green by the local council. The landowner’s application for Judicial Review of the decision was dismissed by the High Court.

The High Court’s Decision:

The High Court reaffirmed the decision in the Redcar case and the requirements to register land as a new green.

In dealing with the 3 issues mentioned above the High Court decided:

1. The landowner was aware that locals used the meadow for recreation and that there were well used paths. The landowner was unaware that rights could be acquired under the commons legislation.  The landowner erected the 2 signs in order to prevent the public acquiring rights over the informal paths. The landowner argued that the effect of the signs was to make contentious any recreational use of the meadow and not just the paths. The High Court held that the objective effect of the signs only made contentious the use of the paths and not the meadow as a whole.
2. The meadow was registered as a new green on the basis that a significant number of users came from a particular neighbourhood, although users did not predominately come from that neighbourhood. In this case the relevant legislation was the Commons Registration Act 1965 as amended by The Countryside and Rights of Way Act 2000. The amended legislation made it easier to register new greens by requiring use by “a significant number of the inhabitants of any locality or of any neighbourhood within a locality”. It had previously been decided that prior to amendment the 1965 Act had required the users to come predominantly from the locality. The landowner argued that the “predominance” test still applied after the legislation was amended. The High Court disagreed. All that is required is that use was by a significant number of the inhabitants of any locality.
3. Counsel for both parties agreed that registration of land as a new green confers recreational rights only upon the inhabitants of a specific locality. Counsel seemed to rely on the Regulations promulgated in 2008 which provide for the model entry in the register to specify the locality. The Judge accepted this as correct in law.

 In Summary:

1. Landowners are aware of the risk that rights may be acquired by prescription but are still blissfully unaware of the rights that may be acquired under the legislation relating to new greens. Landowners and developers should make sure that any signs that are erected extend to the recreational use of the land as a whole and not just to footpaths.

2. The decision carries forward to the current legislation in relation to new greens. The “predominance” test does not apply and as such it is easier to register new greens.

3. It is difficult to read Section 15 of the Commons Act 2006 as allowing further localities to be registered as having rights. It seems that where a green is used by a significant number of inhabitants of several localities, registration of a new green  in favour of one locality will make it impossible for the inhabitants of other localities to establish legal rights of recreation over the same green. In principle this does not seem right.