In their 1968 paean to rural life “Village Green” it is unlikely that the Kinks had in mind celebrating the existence of a 200 square metre concrete area near the water’s edge on the River Stour. The facts in the case of T W Logistics v Essex County Council and another  UKSC 4, however, illustrate this unlikely scenario and highlight the practical issues arising from registration of land as a Town and Village Green (“TVG”) .
The Commons Act 2006 provides for land to be registered as a TVG on the application of any person to the relevant commons registration authority where
“a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.
Once registered the landowner becomes obliged to let members of the public use the land registered as a TVG.
The land concerned (“the Land”) is part of a small port at Mistley in Essex owned by T W Logistics Limited (“TWL”).
At the hearing to decide the application by Essex County Council to register the Land as a TVG pursuant to s.15 of the Commons Act 2006 the Inspector found that the Land had been used “as of right” for lawful sports and pastimes by significant numbers of local people. The main recreational activity was walking, with or without dogs but on no fixed route.
Concurrently with the recreational activities of the public, port-related commercial activities had taken place on the Land throughout the relevant period of twenty years prior to the application. This was by way of the passage over the Land of commercial vehicles and the unloading of those vehicles and the occasional storage of materials and cargo.
Following the decision of the Inspector to register the Land as a TVG, TWL lodged an application to rectify the register, to remove the Land as a TVG and for a declaration that the Land was not a TVG. Barling J dismissed that application  EWHC 185 (Ch). TWL appealed that decision to the Court of Appeal  EWCA Civ 2172 and that appeal was dismissed (Lewison LJ with whom Lindblom and David Richards LJJ agreed). TWL appealed the dismissal to the Supreme Court.
Underpinning the efforts of TWL to achieve deregistration was the potential effect on TWL’s use of the Land of s.12 of the Inclosure Act 1857 and s.29 of the Commons Act 1876 (the “Victorian Statutes”). These, together with modern road traffic and health and safety legislation, criminalise certain acts, such as those which TWL had used the Land for during the qualifying period, undertaken on common land. TWL’s primary argument being that registration of the Land as a TVG would criminalise a use which it had legitimately made of the Land for the twenty years prior to registration.
TWL also argued that the quality of use by inhabitants not sufficient such as to qualify the land for registration under the 2006 Act. As part of this argument TWL claimed that it had issued warnings that the Land was private property and not available for use as of right as required by the Act.
The Supreme Court decision
Lords Burrows and Sales gave the decision of the Supreme Court to dismiss TWL’s appeal.
The rights of the public and the landowner following TVG registration is that registration of the land as a TVG has the effect that the public acquires the general rights to use it as such. However, the exercise of that right is subject to a “give and take” principle that the owner of a TVG is entitled to continue its pre-existing activities as long as they do not interfere with the public’s recreational rights. This means that the public must use their recreational rights in a reasonable manner, having regard to the interests of the owner as recognised in the practical arrangements which developed to allow co-existing use of the land in question during the qualifying period. The standard of reasonableness is determined by what was required of the local inhabitants to allow the landowner to carry on its regular activities around which they were accustomed to mould their recreational activities during the qualifying period.
After registration the landowner has all the rights that derive from its legal title to the land as limited by the statutory rights of the public.
The Victorian Statutes did not have the effect of criminalizing activity of the landowner carried out after registration as a TVG at the same level as it had been carried on during the qualifying period. In particular:
- The concept of the Victorian Statutes “always speaking”- the correct approach is to interpret the words of the Victorian Statutes in the light of modern conditions rather than conditions than prevailed in Victorian times;
- the activities of TWL would not be criminalised by the Victorian Statutes where those activities are “warranted by law”. TWL had the legal right in the period after registration of the Land as a TVG to carry on with what it had been doing previously on the Land;
Therefore TWL’s activities had not been criminalised.
On the issue of the quality of the local inhabitants use, the concept of use as of right requires proof of nec vi, nec clam, nec precario, that is without violence, without secrecy and without permission. Once that had been proven, use would be of right. The judge at first instance had found that proven in this case as a matter of fact and it would not be appropriate for the Supreme Court to interfere with that finding.
The acquisition of TVG rights depends on an acquiescence by the landowner simply means that the landowner has been able to observe over a long period of time that the local inhabitants have appeared to have been making use of the relevant land in the belief that they had a public right to use it, and failed to take steps to disabuse them from doing so. That was the case here.
The eponymous concreted area in TWL being classified as a TVG may seem incongruous but it is not uncommon; in previous decisions an area of rocks used for the mooring of boats, partly submerged scrubland and disused quarries have previously likewise been registered.
The decision illustrates how registration of land as a TVG operates to balance the obvious tension between the acts of the owner of such land and those who have rights over it. By emphasising the “give and take” principle, the Supreme Court has identified that this should be a matter of reasonable co-existence. The owner can continue to do what it has done on the land prior to registration but must honour the rights of the public to exercise the rights which caused the land to be registered.
Of course, if the owner wishes to undertake acts which necessarily oust or prevent the exercise of those public rights, then the act of registration as a TVG prevents the owner so doing. In that case the owner’s only means of freeing the land from those rights is to apply for de-registration. The decision in TWL illustrates how difficult it is to achieve deregistration.
For an owner of land which has the potential to be registered as a TVG the obvious course of action is to prevent the exercise of use becoming “as of right”. An owner may want to do that for many reasons other than protecting the future development value of the land but, ultimately, that is going to be the most common reason for disabling use as of right. In that respect:
- making it clear that the rights are being exercised only with the permission of the owner will, if proven to be the case, mean that those exercising the rights will not be able to meet the nec precario element of the three conditions for proving use as of right ;
- preventing a continuous period of twenty years of exercise from being established will also be a ground for challenging the establishment as of right.
Achieving these may be more difficult. The most obvious method of doing so is to prevent access being physically taken to the land concerned by erecting barriers impassable to anyone who either does not have the permission of the owner (thus failing to meet the nec precario condition) or obtains access by breaking or avoiding the barrier and, in doing so, breaching the nec vi and nec vi conditions.
The erection of signs is not a reliable means of preventing acquisition of the necessary status. Often signs are not worded in such a way as to convey the correct legal wording for the necessary permission e.g. “trespassers will be prosecuted” or the are defaced or fall down or are taken down and are not replaced.
One means is to physically close an open access to the public for a period. Either daily, as some of the Inns of Court in London do every evening or “symbolically”, for a given day in each year (as will be familiar to those seeking to walk down “Millionaires Row” next to Kensington Palace on one day each summer).
For the public the decision in TWL will be welcome. It represents a welcome reminder of the sanctity of open spaces where owners (wittingly or otherwise) have allowed public recreation over long periods of time and preserves that right in perpetuity.