The Court of Appeal was asked to determine whether part of the quayside at Mistley port (owned and operated by TW Logistics) had been properly registered as a town or village green (‘TVG’). In the High Court, Barling J held that it was.
In order for land to be registered as a TVG it must be shown that a significant number of inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20-years (Commons Act 2006, s15). ‘As of right’ is taken to mean the familiar tripartite test nec vi, nec clam, nec precario (without force, without secrecy, without permission). The use relied upon by the Applicants, and accepted by the inspector at the public inquiry, was informal walking and wandering, both with and without dogs, informal games and social activities, and also crabbing at the water’s edge.
The inspector also found that the port continued commercial operations throughout the 20-year period, concurrent with the recreational use of the land made by the inhabitants. On occasion, the local inhabitants were excluded from areas of the port whilst commercial activities were in progress, and also gave way to forklift trucks and other port vehicles.
Issues on appeal
TW Logistics’ arguments on appeal were:
- Registration of the land as a TVG would, as a result of the ‘Victorian statutes’, criminalise TW Logistics’ continuing use of the land as a commercial port. As such, the inhabitants’ use could not be used to support registration.
- The inhabitants in fact had permission to use the land, meaning that the use was not as of right.
The Registration Authority responded by saying that potential criminalisation is not a bar to registration as a TVG, and that the use was not permissive.
Court of Appeal
The Court unanimously dismissed the appeal, with Lewison LJ delivering the lead judgment. His Lordship held that a landowner is entitled to continue using his land after TVG registration in the same way that he did beforehand, provided that use does not interfere with the inhabitants’ rights of recreation. It is a matter of factual evaluation as to whether the uses of the inhabitants and the landowner are compatible. As Barling J held that the uses were in fact compatible, having had the benefit of hearing all the evidence, that finding should not be disturbed.
Will the criminalisation of the landowner’s use prevent registration?
Land registered as a TVG enjoys the protection of the Inclosure Act 1857, s12 and the Commons Act 1876, s29 (the ‘Victorian statutes’). Those statutes are intended to prevent nuisances and interferences with village greens by imposing criminal sanctions for any such action. TW Logistics argued that, as these statutes could criminalise its continuing use of the land, the inhabitants’ use of the land should not give rise to registration of the land as a TVG.
Lewison LJ held that the only test for registration was the tripartite found at section 15, and that any use meeting that test shall be qualifying for the purposes of TVG registration. There is no additional limb to the test that prevents the use being qualifying if the resulting registration would cause any use of the land by the landowner to be criminal.
Arguing that the criminalisation of the landowner’s continuing use should bar registration was understandable. Bars to registration that are not contained with the statutory test at section 15 do exist. For example, In R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7 incompatibility between the statutory scheme of registration and the statutory duties of the Port Authority (which were not present in TW Logistics’ case) prevented the registration of the land as a TVG. Therefore, it was possible that a further bar to registration might be recognised, notwithstanding its absence from section 15; however, the Court firmly rejected any such argument.
Would the continuing use in fact be criminal?
Lewison LJ held that a landowner would not incur criminal liability under the Victorian statutes if he continues to engage in the same use that he did before TVG registration occurred.
The Victorian statutes are intended to prevent public nuisances, which are defined, in part, as being where one ‘does an act not warranted by law’ (R v Rimmington [2005] UKHL 63). As a landowner is entitled to continue their pre-existing use of the land, in so far as that use does not interfere with the recreational rights of the inhabitants, their use iswarranted by law, and not within the scope of the statutes. Therefore, as TW Logistics’ use of the land was in fact compatible with the inhabitants’ recreational use, as decided by Barling J and affirmed by Lewison LJ, TW Logistics would not incur criminal liability.
Implied permission
TW Logistics relied on the fact that the local inhabitants were occasionally excluded from the land to argue that, when they did in fact use the land, they were doing so pursuant to implied permission. Specifically, TW Logistics argued that the inhabitants were occasionally excluded whilst commercial activity was undertaken at the port, and subsequently allowed to continue their recreational use once the activity ceased. In order to be successful in this argument, TW Logistics needed to overcome the huge hurdle of the House of Lords decision in R (Beresford) v Sunderland City Council [2003] UKHL 60, which it was unable to do so.
Lewison LJ held that, if TW Logistics were to succeed with their argument, the distinction between tolerated and permissive use would be eroded. Failing to challenge the inhabitants’ use should not amount to an implied permission, and instead some positive act implying permission must be present. In any event, there was little evidence to suggest that the inhabitants only made use of the land outside of the port’s working hours, or that they were effectively excluded from the land at all other times. As a result, it also was not open for TW Logistics to succeed in arguing that its use of the land was in fact sequential to that of the inhabitants, as opposed to concurrent. It was held that the two uses co-existed with one another, adhering to a principle of give and take, and could give rise to a successful application for TVG registration.
Final thoughts
Lewison LJ hints at an argument for which he may have some sympathy, and says that ‘it is not entirely easy to find a positive duty on a registration authority to register as a TVG land which falls within section 15’ (paragraph 6). An authority has a duty to keep a register under section 1 of the 2006 Act, and section 3(2) provides that land registered as a TVG is to be such land as is so registered under the Act. According to his Lordship, those provisions are probably the source of any positive duty to register land meeting the test at section 15.
In the absence of there being a positive duty to register land that meets the statutory test, a commons registration authority would enjoy the discretion to reject applications to register land as a TVG, even if the test at section 15 is in fact met. It seems that his Lordship may be receptive to such an argument and, if no positive duty to register exists, Essex County Council would have been at liberty to reject the application and decline to register TW’s land as a TVG.
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