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 respondent authority – Appellant owner seeking to have land de-registered – Appellant carrying on commercial activities on land – Members of public engaging in recreational pastimes on land – First respondent registering site as town or village green – High Court dismissing appellant’s application for order removing site from register – Appellant appealing – Whether working port properly registered as town or village green – Appeal dismissed
The appellant company part-owned and operated the Port of Mistley in Essex. Having been alerted to the risk of persons falling into the water, it fenced off the previously open quayside (the site). The second respondent, who worked near the site, applied to the first respondent 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 respondent registered the site. The appellant 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 High Court dismissed the application: [2017] EWHC 185 (Ch); [2017] PLSCS 40.
The appellant appealed arguing that, although there had been co-existence of recreational and commercial activities on the TVG throughout the relevant period, registration as a TVG should not be confirmed if: (i) the effect of registration would be to criminalise the landowner’s continuing use of the TVG for the same commercial purposes as took place throughout the 20-year period so that the recreational use did not have the necessary quality to support the registration; (ii) permission for recreational use could be implied from the interaction of the two uses; or (iii) the two uses were not concurrent but were sequential.
Held: The appeal was dismissed.
(1) In principle, although registration of a TVG curtailed many potential uses of the land so registered, the owner of the soil of a TVG was entitled to continue his pre-existing activities in a lawful way as long as they did not interfere unduly with the recreational rights to which the registration gave rise. The principle of “give and take” enabled the landowner to continue to use his land in the way that he did before registration of the TVG, where that use was not incompatible with recreational use. Whether pre-existing use and recreational use were compatible was essentially a question of fact for the judge. In this case the judge found as a fact that the two uses were compatible. An appeal court should not interfere with that careful evaluation: Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 EGLR 95 and R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 1 EGLR 153 followed. R (Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin), [2003] 3 PLR 60 considered.
(2) A number of potential criminal offences were in play, including section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 (the Victorian statutes). The judge found as a fact that peaceful co-existence had existed for over 20 years. The words of the Commons Act 2006 were clear. If on the facts a significant number of the inhabitants of any locality had indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years, then that land was liable to be registered as a TVG. Once the three criteria had been established, there was no further impediment to registration of a TVG in the absence of some special and conflicting statutory provision. The Victorian statutes were not such provisions: R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7, [2015] EGLR 29, R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2018] EWCA Civ 721; [2018] PLSCS 70 and R (Lewis) v Redcar and Cleveland Borough Council (No 2) considered.
(3) The task was to construe the Victorian statutes as part of the same system as the TVG registration system, as the latter had been interpreted by the courts. It was an intrinsic feature of the scheme for registration of TVGs that the land owner had the legal right to continue to use his land as before where, on the facts, that was not incompatible with recreational use. The Victorian statutes should not be construed so as to make illegal that which, under the statutory registration scheme, was legal if another reasonable construction was possible. Where a pre-existing use was compatible with recreational use that led to registration of a TVG, the land owner had the legal right to continue that use after registration. The continuation of that use was “warranted by law” and did not amount to a public nuisance under the Victorian statutes. The use of the particular TVG under consideration was in question. In a case to which the principle of co-existence applied, that use was recreational use compatible with the land owner’s pre-registration commercial activities. If the land owner simply carried on doing what he had done before there was no interruption of that use: Oxfordshire County Council v Oxfordshire City Council applied. Massey v Boulden [2002] EWCA Civ 1634, [2003] 1 WLR 1792 considered.
(4) The appellant could not resist registration of the TVG on the ground that the recreational purpose was permissive. Even if the use in question was encouraged by the land owner, that would not amount to an implied licence. Nor could permission be implied from the context of a limited recreational use in competition with the land owner’s use. Moreover, on the facts found by the judge there was no sequential use: R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889 followed.
George Laurence QC (instructed by Wilkin Chapman LLP) appeared for the appellant; Andrew Sharland QC (instructed by Essex Legal Services) appeared for the first respondent; Richard Wald (instructed by Birketts LLP) appeared for the second respondent.
Eileen O’Grady, barrister
Click here to read transcript: TW Logistics Ltd v Essex County Council and another
