At the beginning of March, the Supreme Court handed down a judgment that will have significant legal repercussions and give heart to local action groups fighting to save green spaces from development.
The case in question concerned a development for which planning permission was granted in 2007 - a mixed use scheme which included the building of more than 300 homes on an area of open green land known as Coatham Common. The Common, which lies on the Teesside Coast, has been used and enjoyed by local people for all sorts of pastimes and recreational activities for years. However Redcar and Cleveland Borough Council with Persimmon Homes (the developer) had other plans for the open green space. A mammoth struggle ensued between the Council and a steadfast group of local people, who would not give up the fight to preserve land traditionally used as open space for future generations. Two weeks ago, through the unanimous decision of five Supreme Court judges, those hopes were finally realised.
A space for all
When Chris McGlade, a resident of Redcar in the North East of England and member of the Friends of Coatham Common, first contacted the Environmental Law Foundation in 2005, we could not then have anticipated the legal drama that would arise five years later. Chris first approached the E.L.F. for free legal assistance under our Advice and Referral service and we were able to put him in touch with Andrew Lockley, head of environmental law at Irwin Mitchell. Since that time, Andrew has doggedly fought the case through five court hearings including the final hearing in the Supreme Court.
When the Friends of Coatham Common put in their second Village Green application in March 2007 under the then recently updated Commons Act 2006, to have the land registered as a town or village green, the planning inspector again refused the application.
The Friends have fought ever since to have this decision overturned. The reason for the inspector's refusal concerned the so-called 'as of right' principle. The use of land for an uninterrupted period of 20 years for a legal sport or pastime must be 'as of right' - as if the user believed they had a right to use it in this way - and this must be proved in order for a Village Green application to be successful. The assumption is that a reasonable landlord would have had an opportunity to prevent the use over that time or to specifically allow the use, as the use was being conducted plainly in the open (without stealth, secrecy or force).
Golfers or ramblers?
In March 2007, the inspector concluded that the 'as of right' requirement had been extinguished due to a finding of fact that local people in their use Coatham Common had deferred to the other users of the land - golfers using the land as a links golf course. This dual use had continued more or less for 80 years, up to about 2002. The legal issue upon which the final decision hinged revolved around whether, in this dual use of the land, deference had been shown by one user group (local people) to the other (the golfers), or whether in fact local people simply conducted themselves in a civil manner - standing aside as balls were being played.
In his leading judgement, Lord Walker said: 'I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility towards members of the golf club who were out playing golf. It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted … with courtesy and common sense.'
Threat to ancient law
This landmark judgment means that the use of village green land by local people for recreation can co-exist with other uses, and comes at a particularly sensitive time. The Department for Environment, Food and Rural Affairs (Defra) is currently undertaking a review of various Acts and Regulations, including some only recently reassessed and redrafted into the Commons Act 2006.
The E.L.F., is under no illusion as to why this review is being conducted - Defra is coming under mounting pressure from house builders and developers, and organisations such as the Housing Federation, to revisit the new Village Green legislation. This is in light of the perception that the legislation is being used obstructively by local people to prevent target-led house building.
This historic legislation, which although subject to occasional updates dates back as far as 1876, now requires our attention and protection. Too often at the E.L.F. we take enquiries from local people simply seeking to preserve open green spaces that lie at the heart of their communities and which have been used by local people 'as of right'. All those interested in the preservation of our natural heritage must speak up for the this legislation, which can put local people at the heart of decisions on how land is used.
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