Commons registration – Town or village green – Rectification of register – Use “as of right” – Land forming part of working port being registered as town or village green (TVG) by first defendant authority – Claimant owner seeking to have land de-registered – Claimant carrying on commercial activities on land – Members of public engaging in recreational pastimes on land – Whether warning signs or claimant’s conduct rendering public use of land contentious – Whether public use being permissive – Whether commercial activity and vehicular use being compatible with TVG – Whether land being used in manner of highway – Whether recreational use constituting lawful sports and pastimes – Whether use of disused railway amounting to trespass – Claim dismissed
The claimant company part-owned and operated the Port of Mistley in Essex. Having been alerted to the risk of employees and other persons falling into the water, the claimant fenced off the previously open quayside (the site). The second defendant, who worked within view of the site, applied to the first defendant registration authority to have it registered as a town or village green (TVG) pursuant to section 15(3) of the Commons Act 2006, on the basis that it had been used for lawful sports and pastimes as of right throughout the 20 year period ending with the erection of the fence. Following a public inquiry, the first defendants registered the site as a TVG. The claimant applied under section 14 of the Commons Registration Act 1965 for an order that the register be rectified by the removal of the site and a declaration that it was not a TVG.
The claimant contended that: (i) any recreational user of the site was not “as of right” as required by section 15(3) because, during the relevant 20 year period, there had been various signs in place which were effective to render recreational use of the land contentious or permissive and so not “as of right”; (ii) the commercial vehicular use of the land was incompatible with its use for lawful sports and pastimes and registrability as a TVG, and/or any recreational use of the land had not been of the requisite quality to amount to the assertion of a right; (iii) the land had not been used for lawful sports and pastimes within the meaning of section 15, but rather in the manner of a highway; (iv) registration of the land as a TVG would be incompatible with the statutory regime under which the port was operated; and (v) recreational use of the land would have involved the commission of a criminal offence (trespassing on a railway line or siding contrary to section 55 of the British Transport Commission Act 1949) and so could not be lawful.
Held: The claim was dismissed.
(1) The meaning of “as of right” under section 15(3)(a) of the 2006 Act was “not be force, nor stealth, nor the permission or licence of the owner”. The concept of force was not limited to physical force. The fact that use of land was contentious was sufficient to render that use not as of right. One of the ways in which use of the owner’s land might be rendered contentious was by a prohibitory notice which would be understood as such by a reasonable user. In the present case, in the light of the material before the court, at no time during the qualifying period had the claimant done what was reasonable and proportionate to bring to the attention of persons using the land that it objected, and would continue to object, to the user in question. The inspector had rightly determined that a reasonable person would have taken the claimant’s notices to refer not to the quayside but to the remainder of its land: Betterment Properties (Weymouth) Ltd v Dorset County Council (No 2) [2011] 1 EGLR 129 applied. R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94 and Winterburn v Bennett [2016] EGLR 35 followed.
(2) Recreational uses of land were not necessarily displaced or excluded by, or incompatible with, commercial activity carried out on the land, including the activity of commercial vehicles, where the two types of activity could co-exist (as they had during the qualifying period) and there was give and take on both sides. On the facts of the present case, given that recreational users of the land moved out of the way of vehicles using the land, and the claimant’s commercial activities were not adversely affected by the recreational activities, the recreational uses in question were not displaced or excluded by, or incompatible with, the commercial activity, including the activity of commercial vehicles. Furthermore, the fact that registration of land as a TVG might expose a land owner to criminal liability under section 12 of the Inclosure Act 1857 and/or section 29 of the Commons Act 1876 (where it carried on commercial activities on that land) did not give rise to statutory incompatibility such as to preclude the registration of the land as a TVG. Criminal liability under those sections or under section 34 of the Road Traffic Act 1988 was unlikely to be established in any event: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94 and R (on the application of Lewis) v Redcar & Cleveland Borough Council [2010] 1 EGLR 153 applied.
(3) The continued existence, post-registration, of the claimant’s obligations under health and safety legislation could not call into question the sensible co-existence between recreational and commercial use which was in practice maintained throughout the qualifying period, or give rise to any practical or legal incompatibility with the 2006 Act which could preclude registration of the site as a TVG under that Act. The subsistence of those obligations post-registration did not mean that the recreational use during the qualifying period was otherwise than “as of right”.
(4) Recreational walking could support registration of land as a TVG, rather than a public right of way, where the public did not follow a fixed route and their deviations from the fixed route were more than minor or incidental. In relation to the activities of local inhabitants on the site during the qualifying period, their general walking and wandering, with or without dogs, not on a fixed route, represented “lawful sports and pastimes” rather than an activity akin to use of a public right of way: DPP v Jones [1999] 2 AC 240 applied.
(5) Liability under section 55 of the British Transport Commission Act 1949 arose only where the railway line or siding was being “worked”, which meant it had to be capable of being used as a railway track for the passage of railway carriages or trucks. Since the remains of the railway in question had been permanently out of use for two years before the commencement of the 20 year qualifying period, any prosecution under that section would have been hopeless and provided no grounds for reversing the registration of the site as a TVG.
Per curiam: The fact that a local authority had a quasi-judicial role at the decision-making/registration stage did not preclude it, where appropriate, from fully defending its decision in the context of a subsequent claim under section 14 of the Commons Registration Act 1965.
Douglas Edwards QC and Ross Crail (instructed by Wilkin Chapman LLP) appeared for the claimant; Andrew Sharland (instructed by Essex Legal Services) appeared for the first defendant; Richard Eaton (Solicitor Advocate, of Birketts LLP) appeared for the second defendant.
Eileen O’Grady, barrister
Click here to read transcript: TW Logistics Ltd v Essex County Council and another
