Commons registration – Town or village green – Rectification of register – Land forming part of working port registered as town or village green (TVG) by first respondent authority – Appellant carrying on commercial activities on land – Local inhabitants engaging in recreational pastimes – High Court dismissing appellant’s application to de-register – Court of Appeal upholding decision – Appellant appealing – Whether appellant’s commercial activities inconsistent with registration as town or village green – Whether registration criminalising commercial activities – Whether local inhabitants’ use “as of right” – Appeal dismissed
The appellant company part-owned and operated the Port of Mistley in Essex. Having been alerted by the Health and Safety Executive to the risk of persons falling into the water, it fenced off the previously open quayside. 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’s appeal against that decision was dismissed: [2018] EWCA Civ 2172; [2018] EGLR 45.
The appellant appealed contending that: (i) pursuant to the Inclosure Act 1857, the Commons Act 1876 and/or section 34(1) of the Road Traffic Act 1988, which prohibited certain activities on TVGs, the appellant’s continuing commercial activities would be criminalised post-registration; (ii) land should not be registered as a TVG if registration would criminalise the continuing use of that land for the same commercial purposes as took place throughout the 20-year qualifying period; and (iii) the quality of the user by the local inhabitants was not such as to qualify the land for registration as a TVG.
Held: The appeal was dismissed.
(1) The public acquired the general right to use land registered as a TVG for any lawful sport or pastime, whether or not corresponding to the particular recreational uses in the 20-year qualifying period. However, the public had to use their recreational rights in a reasonable manner, having regard to the interests of the landowner (commercial or otherwise) as recognised in the practical arrangements which developed to allow for co-existing use of the land in question during the qualifying period. The standard of reasonableness was determined by what was required of local inhabitants to allow the landowner to carry on its regular activities.
The application of that standard meant that after registration the landowner had all the rights that derived from its legal title to the land, as limited by the statutory rights of the public. It had the legal right to continue to undertake activities of the same general quality and at the same general level as before. In practical terms, the landowner had the right to undertake new and different activities provided they did not interfere with the rights of the public to use the land for lawful sports and pastimes.
It followed that the mere fact of registration of land as a TVG did not inform a prospective purchaser of land what the precise nature of its entitlement to use the land might be. However, registration served an important function in alerting any purchaser of the land to the fact that TVG rights existed and put the purchaser on notice that it should investigate the extent to which activities of the landowner were established and accepted during the qualifying period: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95, R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 1 EGLR 153 and R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58; [2019] PLSCS 234 considered.
(2) The Victorian statutes and the Commons Act 2006 formed a general, coherent statutory code for the protection of rights in relation to TVGs, in the light of modern conditions. Prior to their implementation, common law public nuisance was the criminal offence which protected the public’s right to enjoy a TVG. The Acts were intended to provide more effective protection by listing examples of public nuisances amenable to summary prosecution; they were not intended to expand the public’s rights.
In accordance with the definition of the offence of public nuisance in R v Rimmington [2006] 1 AC 459, the appellant’s activities were not criminalised where those activities were warranted by law. As the appellant had the legal right after registration to carry on its existing commercial activities, those activities were warranted by law. Similarly, the appellant’s right to carry on with its activities meant that it did so with lawful authority and the statutory restrictions on interfering with the use of the land as a TVG did not apply. Furthermore, to the extent that the Health and Safety Executive might require the appellant to take some particular action, that would constitute lawful authority and would involve no criminality.
(3) The concept of use “as of right”, which was required for registration, involved use of land by the local inhabitants in a way which would suggest to a reasonable landowner that they believed that they were exercising a public right in doing so. The idea that the acquisition of TVG rights by prescription depended on acquiescence by the landowner simply meant that the landowner had been able to observe over a long period that the local inhabitants had appeared to be using the relevant land in the belief that they had a public right to do so and failed to take steps to disabuse them or prevent them from doing so. The landowner’s concerns that its activities might be criminalised as a result of registration did not affect the quality of the public’s use: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94 followed.
David Holland QC and Toby Watkin (instructed by Wilkin Chapman LLP, of Grimsby) appeared for the appellant; Andrew Sharland QC and Katherine Taunton (instructed by Essex Legal Services) appeared for the first respondent; Richard Wald QC and Richard Eaton (instructed by Birketts LLP, of Ipswich) appeared for the second respondent.
Eileen O’Grady, barrister
Click here to read a transcript of TW Logistics Ltd v Essex County Council and another
