Section 15(3) of the of the Commons Act 2006 effectively provides that if the use of land “as of right” had ceased before the commencement of the two-year period prior to the application being made, there can be no registration of that land as a town and village green under that application.
Burrows (on behalf of Wraysbury Action Group), R (on the application of) v The Royal Borough of Windsor and Maidenhead & Anor  challenged the decision of the Royal Borough of Windsor and Maidenhead (“the Local Authority”) to refuse registration of land called Thamesfield in Wraysbury as a town or village green under section 15 of the Commons Act 2006.
A planning inspector “conclude[d] that although Thamesfield ha[d] been used for lawful sports and pastimes by significant number of the local people for more than twenty years, such use [had] bec[o]me contentious and ceased to be use “as of right” in July 2007 and that the application fail[ed] because it was not made within two years of that cessation.”
The wording of the signs erected at some, but not all, entrances to the land in early July 2007 was:
Access to this land is by permission of the owners’
The local inhabitants argued that they were ambiguous as to whether the signs are prohibitory or permissive signs. They could mean that the land was privately owned, but the owner gave general permission to all and sundry to access the field. Or, it could mean that no one was entitled to access Thamesfield without the permission of the landowners.
This case involved a permission application, to establish whether the residents had an arguable case for judicial review of the earlier decision to refuse registration so the Judge did not necessarily follow through argument in the same detail that would have been necessary if he had been dealing with this on a substantive basis and, therefore said his conclusions should not be seen (or cited) as in any way authoritative.
The crux of the case was whether the effect of the words was prohibitory or permissive seen in the full context in which they were used. Only in the former case could the sign operate in favour of the landowner.
To an ordinary reasonable reader the words used on the signs could only convey the message that there was no right to use the land. Although they were not at every entrance they were sufficient to give that general impression.
“As of right” does not mean “of right”. Its meaning is closer to “as if of right”…. So paradoxically a trespasser (provided he acts peaceably and openly) may acquire rights by prescription in spite of, or reinforced by acting in defiance of, a “Keep Out” sign, whereas a licensee, who enters the land with the owner’s consent, will probably not acquire such rights.
This Judge in this case did not follow that argument through to the same conclusion and appears to have taken the narrower approach that the presence of signs whether or not backed up by any enforcement action somewho prevented the people who defied them acting “as if they had the right” to be there for recreation.
This blog has been posted out of general interest and it does not remove the need to get proper legal advice in individual cases.