The Supreme Court handed down judgment in the case of R (Lewis) v Redcar and Cleveland Borough Council and another [2010] UKSC 11 on 3rd March 2010. The case was heard on the 18th, 19th and 20th January 2010, and concerned the registration of a town green under provisions of s.15 of the Commons Act 2006 (c.26) (‘the Act’).

The appellant had been one of five local residents who commenced an application for registration under the Act. Of relevance in the Supreme Court was a ground of refusal by the inspector that the use prior to 2002 was extensively that of a golf club and therefore could not be claimed as of right by the residents. The refusal decision was accepted by the local authority. Relying on the case of R (Laing Homes) v Buckinghamshire County Council and Another [2003] EWHC 1578 (Admin), the High Court upheld that decision. The refusal was further upheld in the Court of Appeal.

The appellant challenged the decision in the Supreme Court. The sole issue before the court concerned whether use of the land for lawful sports and pastimes but deferring to the use of the land as a golf course precluded the claim as of right to have land registered as a town green.

Responding to the question of whether this had been met, the court considered the judgment of Lord Hoffmann in the case of R v Oxfordshire County Council, Ex parte Sunningwell Parish Council [2000] 1 AC 335. In this case the theory of prescription was determined to relate to “how the matter would have appeared to the owner of the land”. Applying this principle, and focusing on the way the land had been used by the residents the court considered that it was difficult to declare that a right had not been asserted simply by virtue of residents’ civility towards other users of the land.

Addressing the respondent’s argument of possible change in the use of the land by residents following registration, the court considered that there was little evidence to support concerns of “a sudden diversification or intensification of use”.

Allowing the appeal, the court determined that the inspector’s decision erred in law and the land should be registered as a town green by the local authority.