A recent Supreme Court ruling on town and village greens leaves one question answered, another left hanging, writes Richard Wald QC.
The appetite of the highest court in the land for appeals relating to town and village greens (TVGs) remain unabated. On 12 February the Supreme Court gave judgment in almost its 10th TVG case which either it or the Appellate Committee of the House of Lords before it, had considered in twice as many year. At least half of these cases have centred around the operation of section 15 of the Commons Act 2006 registration of village greens. On this occasion, in TW Logistics v Essex CC & Ian Tucker  UKSC 4 the Supreme Court considered whether the possibility of post-registration criminal sanction on part of a working quay should act as a bar to its registration as a TVG. In a unanimous judgment, the Court decided that the principle of coexistent user, first enunciated by the SC in R(Lewis) v Redcar and Cleveland Borough Council No 2  2 AC 70, and the necessary give and take between landowner and local inhabitants which that principle implies meant that such criminal sanction should not arise unless either of these parties materially altered its use of the registered land in such a way as to interfere with the registered or subsisting rights of the other.
The Supreme Court started its judgment, like several of those which had gone before it, by observing how far from the traditional image of a TVG we had come. Mistley Quay, the subject of this case, presented, it noted, a good example of a registered TVG which does not conform to the notion of a bucolic area of grass where local inhabitants can walk and play . Turning to the central question of whether the land had been validly registered as a TVG the Court noted that the registered land lies along the quayside in Mistley port in Essex and that owner/operator of it, T W Logistics (“TWL”) had been using it for the passage of port vehicles, including heavy goods vehicles, and the temporary storage of cargo on the quayside. Crucially, this activity was, throughout the 20 year period relevant to the TVG registration, concurrent with its use by local inhabitants to walk dogs, to stop and chat on the quayside, and for general recreation. In September 2008, following concerns about people falling into the water and a threat by the Health and Safety Executive of enforcement action, TWL erected a 1.8 metre high chain link metal fence along the quayside. This provoked Mr Tucker, a concerned local inhabitant to apply to the Essex County Council (“the Council”) on 18 August 2010 to register a large part of the quay as a TVG pursuant to section 15(3) of the Commons Act 2006. In 2013, the Council appointed Inspector Alun Aylesbury to hold a non-statutory public inquiry. He found that the land in question satisfied the statutory criteria in that it had been used “as of right” for lawful sports and pastimes by significant numbers of local inhabitants for the preceding 20 years. The Council therefore registered the Land as a TVG and TWL challenged that registration in the High Court on a number of grounds, all of which were dismissed by Mr Justice Barling. The Court of Appeal unanimously upheld the High Court’s decision and TWL appealed to the Supreme Court.
The Supreme Court unanimously dismissed TWL’s appeal and upheld the TVG registration. TWL’s three grounds of appeal were that: (1) land should not be registered as a TVG if that would criminalise the landowner’s existing commercial activities, due to HSE legislation and 2 Victorian Statutes which imposed criminal sanctions on those who interfered with the use of TVGs; (2) on the facts of this case, TWL’s commercial activities would be so criminalised after registration; and (3) the use of the Land by the local inhabitants was not “as of right” .
The Supreme Court considered Ground 2 first . In answer to the question of whether TWL’s commercial activities would be criminalised after registration, the Court first set out the rights of the public and the landowner over the land following TVG registration  and observed that local inhabitants have to exercise their rights over a TVG in a fair and reasonable way, so as to respect the concurrent reasonable and established use by the landowner , which has become known as the principle of “give and take”  (see e.g. Redcar). Following registration, the public acquired the general right to use the land for any lawful sport or pastime, whether or not corresponding to the particular recreational uses to which it was put in the preceding 20 years  but the landowner can continue to undertake activities of the same general quality and at the same general level as before. The landowner may also undertake new and different activities provided that these do not interfere with the right of the public to use the land for lawful sports and pastimes . TVG registration does not therefore criminalise the landowner continuing its pre-existing activities on the land . This is because the Victorian statutes treat certain acts as public nuisances and so, in accordance with the definition of the offence of public nuisance in R v Rimmington  UKHL 63, TWL’s activities are not criminalised where those activities are “warranted by law” . In this case, because TWL has the legal right after registration to carry on its existing commercial activities, those activities are “warranted by law”  and no criminality for ongoing commercial activity arises. Similarly, TWL’s right to carry on with what it has been doing means that it does so with “lawful authority” for the purposes of other legislative provisions such as section 34 of the RTA 1988  and relevant health and safety legislation. If TWL is lawfully required by the HSE to take some particular action, that too would constitute lawful authority for doing so . Accordingly, the Supreme Court dismissed the appeal on Ground 2 . The question raised by Ground 1, namely is registration barred if it would criminalise the landowner’s continuing activities? did not fall to be answered given the Court’s findings in relation to Ground 1 . And as for the question raised by Ground 3, i.e. was the local inhabitants’ use of the Land “as of right”? the concept of use “as of right” involves 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. Since the landowner’s concerns at their use do not affect the quality of that use this ground of appeal was also rejected .
The Supreme Court’s judgment answers a key question but leaves another unanswered. It tells us that TVG registration in the minority of coexistent user cases would only place a landowner at risk of criminal sanction in the event of an intensification or alteration of the use made of the land during the 20 year qualifying period and is therefore no bar to registration. However, in such cases, there may be real logistical and evidential challenges in understanding what the nature and extent of coexistent user had been in order to be able to either defend an action by the landowner in trespass or equip the landowner with the necessary evidence to defend proceeding brought in relation to an interference with the TVG rights of local inhabitants. Whilst this particular case saw very extensive descriptions of the coexistent user and the ‘give and take’ which characterised the use of the registered land over the requisite 20 year period (first in Inspector Aylesbury’s comprehensive report and then in Barling J’s equally comprehensive judgment), not all cases will benefit from such extensive public records of use. To make matters worse registration itself is a binary act. Land is either registered as a TVG or it is not and there is no statutory requirement to record details of it on the register. Perhaps one of the effects of this judgment will be to establish a greater role for registration authorities in recording and safeguarding the respective rights of local inhabitants and land owners after the registration of TVGs where coexistent user had occurred. One way of achieving this would be for such authorities to create and publish their own records of such use. One analogy for this might be certificates of lawful use in the planning context serve to record and formalise the use of land. But a better one derives from the registers of contaminated land which under Part 2A of the Environmental Protection Act 1990 make provision for the binary recording of land assessed to be contaminated for those purposes but not for the recording of an approved and completed decontamination process or for deregistration. A practice has arisen in that context, for the inclusion of an informative on the contamination register to let any interested party know that albeit registered contaminated, the land had been satisfactorily remediated. TVG registration authorities might likewise provide an informative which describes the necessary detail of any coexistent user. And who knows, If the Supreme Court’s enthusiasm for TVG cases continues, we might see further judicial comment on this before too long.
Richard acted for the successful TVG applicant, Ian Tucker, in the Court of the Appeal and in the Supreme Court. He led Richard Eaton, Partner and Solicitor Advocate at Birketts LLP.