To work out the details on how to acquire communal resource rights by long term use we first have to examine the question what are communal resource rights exactly. Due to the fact that there is no possibility for a community to own land or to hold fee simple estates in land, English Law has developed limited access “communal property rights”. These rights can be exercised over areas known as commons.
Commons have their origin in the agricultural tradition that has been established in the late 11th century to use the harvested fields together for common grazing of the animals of all members of a locality. Out of these local customs evolved the so called “rights of common” as part of the communal property rights. They are held by distinct individuals of a community and include rights such as fishing, grazing or to collect firewood which can be asserted by them.
Over time, the use of particular rights of common decreased due to the industrialization. The changing reliance of the people on certain resources such as timber and the second communal property rights called customary rights of fluctuating bodies gained in importance. They can only be acquired by custom or by long use and have the peculiarity that they can be exercised, once they have been established, by anybody independently of ownership as long as he belongs to the particular local community.
One of the most frequently exercised customary rights is the right of recreational use on which this paper puts the focus on. This use has been very limited in the history of English law, but in the 13th century some land has been increasingly used by the local inhabitants for recreation or sports and the courts started to declare a land as town or village green with protection from interference if a long term use could be verified.
Since the 19th century the centre of gravity shifted from the agricultural benefits of town or village greens to the recognition of the large general public interest in recreation and the countryside. This development culminates after various other statutory provisions in favor of the protection of town or village greens in the Commons Registration Act in 1965.
Table of Contents
A. Preliminary Considerations
B. Acquiring communal resource rights by long term use
I. Case facts of Lewis v Redcar
II. The outcome of Lewis v Redcar in the context of other decisions
1. Section 15 of the Commons Act 2006
a. A significant number of inhabitants
b. Locality or neighborhood within a locality
c. Indulgence in lawful sports and pastimes
d. The 20-year-period
e. As of right
2. Rights of use after registration
3. Measures for preventing a registration as a town or village green
C. Conclusion
Objectives and Topics
The primary objective of this paper is to examine the legal implications of the Supreme Court decision in Lewis v Redcar regarding the acquisition of communal resource rights through long-term use. The research investigates how this landmark case influences the registration of land as town or village greens, specifically addressing the criteria for "as of right" usage and the balance between public recreational access and private property rights.
- The legal definition and history of communal property rights in English law.
- Detailed analysis of Section 15 of the Commons Act 2006.
- The "as of right" test and the impact of resident "deference" to landowners.
- Strategies for landowners to prevent the registration of town or village greens.
Excerpt from the Book
I. Case Facts of Lewis v Redcar
The disputed land is known as “Coatham Common“ or “Coatham Links“ and It was for at least 80 years part of a golf course in regular use by members of the Cleveland Golf Club. It included the tees, fairways and greens of the first and eighteenth holes and additionally a small practice area, but they are no longer apparent. Over time there have several informal paths been created which cross the disputed area. Besides the paths the disputed land has been extensively used by local residents for recreational uses such as dog walking or children’s play. In 2002 the Cleveland Golf Club ceased the use of the area for their golf course and sold it to the Redcar and Cleveland Borough Council, now the freehold owner of it and also the registration authority for town or village greens. Together with the second respondent Persimmon Homes (Teeside) Ltd. the Borough Council started in 2003 a development project for the regeneration of “Coatham Common” for residential and leisure purposes. The disputed area formed an important part of this project.
Summary of Chapters
A. Preliminary Considerations: This section introduces the concept of communal property rights and the historical evolution of "rights of common" and customary rights in English law.
B. Acquiring communal resource rights by long term use: This chapter provides a comprehensive analysis of the Lewis v Redcar case, evaluating the legal criteria for registering land as a town or village green under the Commons Act 2006.
I. Case facts of Lewis v Redcar: This chapter details the background, history of usage, and the procedural history of the dispute over Coatham Common.
II. The outcome of Lewis v Redcar in the context of other decisions: This section examines the Supreme Court's findings, clarifying legal interpretations of "as of right" usage and the impact of the ruling on property development and public access.
1. Section 15 of the Commons Act 2006: This section breaks down the specific qualifying requirements for green registration, including population numbers, locality definitions, and the 20-year period.
a. A significant number of inhabitants: Discusses the evidence required to demonstrate general use of an area by local residents.
b. Locality or neighborhood within a locality: Explores judicial interpretations of geographical and functional community boundaries.
c. Indulgence in lawful sports and pastimes: Defines the scope of recreational activities protected under the Act.
d. The 20-year-period: Reviews the historical development and legal necessity of the 20-year requirement for prescription.
e. As of right: Analyzes the tripartite test (without force, stealth, or permission) and the relevance of resident "deference" to landowners.
2. Rights of use after registration: Discusses the continuing rights of landowners to use their property alongside public recreational use following a successful registration.
3. Measures for preventing a registration as a town or village green: Outlines the limited defensive strategies available to landowners, such as signage and fencing.
C. Conclusion: Summarizes the major impact of the Supreme Court ruling on developers and the tension between public recreational needs and statutory land rights.
Keywords
Lewis v Redcar, Commons Act 2006, Town or Village Green, Communal Property Rights, Prescription, Recreational Use, As of Right, Land Law, Public Inquiry, Coatham Common, Property Development, Customary Rights, Inhabitants, Registration Authority, Deference.
Frequently Asked Questions
What is the central focus of this paper?
This paper focuses on the legal challenges and implications surrounding the registration of land as town or village greens, particularly in light of the 2010 Supreme Court decision in Lewis v Redcar.
Which primary themes are addressed in the analysis?
The themes include the historical development of communal property rights, the interpretation of the Commons Act 2006, the criteria for establishing public recreational rights, and the potential impact of these rights on land development.
What is the core research objective?
The objective is to analyze how the Lewis v Redcar judgment clarified the "as of right" requirement and how it affects the balance of power between landowners and the general public seeking recreational access.
What scientific methodology is utilized?
The work employs a legal research methodology, specifically a comparative and analytical review of case law, statutory provisions (primarily the Commons Act 2006), and scholarly land law literature.
What does the main body of the text cover?
The main body covers the specific facts of the Coatham Common case, an analysis of the statutory criteria for registration, judicial interpretation of resident behavior, and the aftermath of registration on property usage.
Which keywords best describe this research?
Key terms include Lewis v Redcar, town or village green, Commons Act 2006, communal property rights, prescription, recreational use, and land development.
How does the "deference" of residents impact their legal claim?
Initially, lower courts held that if residents deferred to the landowner's activities (like golfing), it suggested they were not acting "as of right." The Supreme Court rejected this, ruling that courtesy and civility do not negate the assertion of a public right.
What practical advice does the paper offer to developers?
The paper suggests that developers must be proactive in managing land use, specifically noting that they must take concrete steps to prevent long-term public use if they wish to avoid future registration of their land as a village green.
- Citation du texte
- Fabian Junge (Auteur), 2011, Acquiring communal ressource rights by long term use after Lewis v Redcar, Munich, GRIN Verlag, https://www.grin.com/document/178385
