13. April 2021
RED alert - Spring 2021 – 3 von 6 Insights
The Supreme Court has brought years of appeals to an end and upheld the registration of an area of Mistley Quay in Essex as a town or village green (TVG). The case does not break new ground, but is a useful reminder of the modern law surrounding TVGs and the impact that registration of the same can have. It should serve to prompt landowners to consider how the public uses their land, especially with the increase in engagement during the pandemic, as well as any action that might need to be taken to prevent an unwanted claim for registration being made.
Under the Commons Act 2006, any person may apply to register an area of land as a TVG where a significant number of inhabitants in the locality have enjoyed lawful sports and pastimes on the land for a period of at least 20 years. Registration can be applied for while that use is ongoing, or within the period of two years following the public being prevented from doing so.
This case concerned part of a concrete quayside at Mistley Quay (the Land). The Land was privately owned by TWL and was used as part of TWL's port operations. From TWL's perspective, the Land was crossed by HGVs loading and unloading crates from ships and transporting them either to the public highway or to a storage area on the quay. However, the Land was also used by local residents, primarily for walking but also for other recreational activities. Both sets of activities co-existed together without difficulty.
In 2008, the Health and Safety Executive grew concerned at the risk of people falling into the water from the quay and TWL erected a fence along the Land to keep people from getting to close to the edge. Doing so prevented the public from accessing the Land and in 2010, an application was made for the Land to be registered as a TVG.
Following an inspection and inquiry, the registration was granted, with the inspector noting at the time that the registration should enable the original uses to continue. In short, there could be a "sensible and sustained co-existence between the two groups".
TWL appealed this decision, arguing that the effect of Victorian legislation relating to activities undertaken on TVGs for which the perpetrator would potentially face criminal liability meant that TWL’s continued commercial use of the Land post-registration would be against the law.
TWL's appeal was dismissed and the registration was upheld. The Court's focus was on the consideration of the rights of the public and the landowner following the registration of land as a TVG and it looked in great detail at what the effect of registration as a TVG was on privately owned land. It drew on previous authority to underline the principle that a landowner may continue with a pre-existing activity notwithstanding TVG registration; emphasising the idea that there must be 'give and take' between the landowner and the public in order that both can co-exist on the land registered without negatively impacting on the activities of the other.
The Court also determined that the rights conferred by the registration extended to all rights of recreation, subject to this principle. Accordingly, while there was no defined 'limit' on the activities, those activities could not extend beyond what went before so as to disrupt the landowner's use of the land. The rights gained by the public are, in other words, for "recreational use compatible with the landowner's commercial activities".
It said that the registration does not grant the public additional rights – nor are the landowner's rights suddenly found to be subordinate to the rights of the public. The Court emphasised that 'common sense' would be the most effective guide to what rights the public could exercise over the land following registration, and such rights could only be exercised within the context of what the landowner was doing during the period before registration.
This case underlines the principle of 'give and take' following the registration of land as a TVG. While the public using a fixed route to cross from point A to B across land may give rise to a public right of way, landowners need to also be mindful of activities taking place on land where the only reason to be there is for recreational purposes. In this case, there was no fixed route across the Land and the public would cross all over it while walking, meeting, enjoying the view and playing games. People did not necessarily need to be going from one end to the other – the Land was their destination. If such activities exist, or begin, then it is important for landowners to be live to the issues arising and take steps to address it.
Landowners can limit the risk of a claim arising by being clear on the entrance to the land that the land in question is private, indicating what routes across it are public rights of way, and what it expects from the public while they are using it. However, the case also shows that the nature of the land over which rights may be exercised is also worth bearing in mind. The Court was clear that a TVG did not need to be a square of grass in the middle of a village, but could be any area over which the public exercised rights of recreation.
Deregistering land as a TVG can be tricky, particularly if a landowner is looking to use a parcel of land registered as a TVG for a more lucrative purpose, such as residential development. There is a statutory process which allows land to be deregistered, but it is not an easy one to navigate and involves offering different land to replace the existing TVG as well as being able to argue, among other things, that it is in the public interest for the land to be deregistered.
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