The Court of Appeal in the TW Logistics Ltd v Essex County Council & Anor [2018] EWCA Civ 2172 has recently examined the legal effect registration of village greens has upon landowners’ existing and continuing operations and whether it criminalises such operations. Additionally, if such operations are potentially criminalised then does this bar the land from registration as a village green?
The facts
The case concerned an application for a new village green upon land forming part of the Port of Mistley in Essex. The private port is owned in part and operated by the claimant. The claimant is not a statutory undertaker and has no statutory obligations as a port operator.
Following a non-statutory inquiry, the inspector appointed by the council recommended the application land to be registered as a village green. In particular, it was found that the main recreational activity was informal walking or wandering, with or without dogs, and not on a fixed route, and people often standing and having a chat with others in association with such wanderings.
Concurrently with these sports and pastimes, the inspector found that there had been port-related commercial activities throughout the relevant period. These activities mainly consisted of the passage of dock-related commercial vehicles. However, the inspector found that the two types of activity had co-existed for very many years, including throughout the relevant 20-year period, and local people from time to time sensibly got out of the way of a passing lorry or forklift truck.
Importantly, the inspector concluded that:
“The case law makes clear that such give and take can be consistent with use "as of right". In my view there was no question of the exclusion or displacement of recreational pastimes by reason of the commercial activity that was taking place on Allen's Quay. The fact that pedestrians got out of their way when lorries passed over the Land, or that goods were stored or lorries parked on the Land for relatively short periods, does not amount to displacement or exclusion of the relevant pastimes engaged in on Allen's Quay, such as to preclude the continuity or quality of use required by the relevant principles of law. Further, TWL has not suggested that commercial activities on Allen's Quay have been adversely affected by the recreational activities of the public”.
The claimant principally argued that the registration of the land as a village green resulted in the criminalisation of its existing and continuing operations. It then contended that there is a legal bar to registration of village green where a landowner’s operations are potentially criminalised.
Legislation
The two key statutory provisions which criminalise activities on village greens and commons (known as ‘the Victorian statutes’) are as follows:
Section 12 of the Inclosure Act 1857 which provides:
"And whereas it is expedient to provide summary means of preventing nuisances in town greens and village greens, and on land allotted and awarded upon any inclosure under the said Acts as a place for exercise and recreation: If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof [pay a fine]."
Section 29 of the Commons Act 1876 provides:
"An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section twelve of the Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned."
The decision
The Court of Appeal dismissed the claim. Importantly for the public, it was confirmed that the potential criminal offence under the Victorian statutes is not a bar to registration of a village green. Equally important for landowners, it was confirmed that existing and continuing operations are not criminalised by the Victorian statutes, albeit they may limit a landowner’s ability to expand and vary its operations.
Lord Justice Lewison stated the following as to the lawfulness of landowner’s existing and continuing operations:
“it is an intrinsic feature of the scheme for registration of TVGs that the land owner has the legal right to continue his use of the land as before where, on the facts, that is not incompatible with recreational use. The Victorian statutes should not be construed so as to make illegal that which, under the statutory registration scheme, is legal if another reasonable construction is possible … the continuation of that use is "warranted by law" and does not amount to the commission of a public nuisance.”
On the issue of whether a potential criminalisation of the landowner’s existing operations as a bar to registration, Lord Justice Lewison stated:
“once the three criteria have been established [ie. nec vi, nec clam, nec precario (not by force, nor stealth, nor the licence of the owner)], there is no further impediment to registration of a TVG in the absence of some special and conflicting statutory provision. The Victorian statutes are not such a provision. I would therefore dismiss this ground of appeal”.
Lesson: Where a landowner’s operations and the public recreational use of land has co-existed so as not to be incompatible then such existing operations will not be criminalised and may lawfully continue, following successful registration of the land as a village green. While registration may prevent and criminalise material changes and intensification of existing operations (which will be a question of fact in any such prosecution), such potential criminality is not a bar to registration of village greens.
