Allyson Colby explains how a working port can be recognised as a village green
Key points
- Registration of land as a green entitles local inhabitants to use it for lawful sports or pastimes in general
- But recreational users cannot interfere with the commercial activities continued by the landowner to a greater extent than they did previously
- So competing activities can co-exist, through give and take on both sides, and there will not be any criminal consequences
Do statutory protections safeguarding rights to use town and village greens, dating back to the reign of Queen Victoria, criminalise the continued use of land for commercial purposes, once it is registered as a green?
It might have been thought that the point was settled by Lord Hoffman in Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95. But His Lordship did not explain exactly how to interpret the legislation and precisely why it does not criminalise the continuation of a landowner’s former activities. Enter, stage left, TW Logistics Ltd v Essex County Council [2021] UKSC 4; [2021] PLSCS 32.
Operational port
The litigation concerned the registration of a concrete apron in a working port used by heavy lorries, forklift trucks and other vehicles, as well as for the occasional storage of cargo and materials. But locals also walked their dogs and met each other there, until the Health and Safety Executive expressed concern and the port operator, a private landowner without statutory backing, erected a fence close to the quayside to prevent people from falling into the water.
The locals responded by applying to register the land as a green – prompting litigation in which the port operator argued that it was impossible for the commercial and recreational uses to exist side by side post-registration because the Victorian statutes would criminalise its activities on the quay. But the High Court and the Court of Appeal upheld the registration. And so too, now, has the Supreme Court.
Victorian statutes
Section 12 of the Inclosure Act 1857 makes it a criminal offence to do anything that interrupts the use or enjoyment of a green as a place of exercise and recreation. And it is a public nuisance to encroach on or enclose a green, thanks to section 29 of the Commons Act 1876. Even so, the Supreme Court decided that the port operator was entitled to continue activities of the same general quality, and at the same general level, as it had undertaken previously.
The court explained that the Victorian statutes should be interpreted in the light of modern conditions, in which local inhabitants are able to register types of land that would not once have been considered greens. Furthermore, they, and the modern statutory regime governing greens, should be construed as a coherent whole. So, if another reasonable construction is possible, the Victorian statutes should not be interpreted in a way that would render actions illegal, if they are legal under the registration scheme today. Indeed, the purpose of modern legislation would be undermined if a former use of land were to become impossible after registration as a green, because there would be a risk that the legislation would be applied more restrictively.
The Victorian statutes were directed at public nuisances. Archbold describes the offence of public nuisance as actions “not warranted by law” (a description that was approved in R v Rimmington [2006] 1 AC 459), while the underlying feature of the Victorian statutes is reflected in the use of the phrase “without lawful authority”. So the port operator’s activities would not be criminal if they were “warranted by law”.
The authorities, derived from Fitch v Fitch [1797] 2 Esp 543, confirm that there must be “give and take” on both sides. In other words, those using land for recreational activities must exercise their rights fairly and reasonably, while respecting the landowner’s own use: see R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 1 EGLR 153. Consequently, post-registration rights to use land for lawful sports and pastimes (whether or not corresponding to the recreational use made of the land in the pre-registration qualifying period) cannot interfere with the commercial activities of the landowner to a greater extent than during the qualifying period. It followed, therefore, that the port operator’s activities were “warranted by law”.
Other legislation
Similar reasoning applied to section 34 of the Road Traffic Act 1988, which makes it a criminal offence to drive vehicles on a green “without lawful authority”. The port operator’s use of the quayside would not contravene section 34 because it had lawful authority for its activities.
The operator was also concerned about health and safety requirements, breaches of which would also be criminal offences. However, the Supreme Court noted that the operator had always been subject to these requirements and ruled that compliance would not fix it with criminal liability because, to the extent that the operator was required to safeguard its workers or members of the public, it had lawful authority to do so. Therefore, no criminality would be involved. And, if the Health and Safety Executive were to ignore the rights of local inhabitants, its requirements would be susceptible to judicial review.
Looking forwards
It was therefore not necessary for the court to consider whether criminalisation of a pre-existing use would render land ineligible for registration as a green – and the question remains open for future consideration, should the point arise.
Landowners will welcome the Supreme Court’s suggestion that the port operator could intensify its use of the port, with a concomitant increase in vehicle movements, and undertake new and different activities, so long as it did not interfere with lawful recreation on the quay. And it is worth noting that the court underlined its message to all concerned by indicating that any resulting disputes should be resolved in the civil courts.
Allyson Colby is a property law consultant
