Town and Village Greens: Essex CC's 'quay' to Court of Appeal success

29th October 2018

Walker Morris’ Town and Village Green (TVG) experts offer some practical advice for landowners following the recent Court of Appeal decision in the Mistley Quay case [1].

TVG registrations

In our previous briefing, we explain in some detail TVG registrations and the legal and practical concerns for landowners and developers. In short, any person may apply to register land as a TVG if a significant number of local inhabitants have indulged, as of right, in lawful sports and pastimes on the land for at least 20 years.  Once land has been registered, it is afforded the highest form of protection, which can severely restrict future use and development.

Background – High Court case

In 2017, following registration of part of the waterfront port at Mistley Quay in Essex, the landowner applied to the High Court for rectification of the TVG register on several grounds, including:

1. that the use of the land had been contentious well in excess of 2 years before the application to register the land was made
2. that there had been signs erected around the land effectively rendering any use as permissive (and not ‘as of right’)
3. that the commercial use of the land was incompatible with the lawful sports and pastime claimed to have been carried out
4. that the land had not been used for lawful sports and pastimes but instead in the manner of a highway
5. that the registration of the land would be incompatible with the statutory purpose for which the port was operated
6. that recreational use would have amounted to trespass.

There were a number of signs erected within the port which were plainly prohibitory in effect. The issue, however, was whether the signs referred sufficiently to the particular land that was subject to the TVG registration. The High Court concluded that the average user would not have thought so and that landowners had failed to make clear that they objected to use of that land for lawful sports and pastimes. The use of the land was therefore deemed to have been non contentious during the 20 year qualifying period.

The issues of incompatibility raised in grounds 3 and 5 were dealt with as one. The High Court held that the intensity of commercial port activities on the land was insufficient to prevent use for informal recreation and, as such, the two had coexisted peacefully during the qualifying period.

The TVG site, when combined with the adjoining adopted highways, created a circuit which was used by some local inhabitants for informal walking and dog walking. The claimant argued that the reasonable landowner would not have perceived the use of the land to be a lawful sport and pastime and instead would have deemed the use to be consistent with that of a public highway. The High Court disagreed, concluding that, whilst it was apparent that some use of the site was as part of a larger circuit, the evidence suggested that the main attraction of the site was its views across the water. Consequently, the main use of the site was for recreational purposes and different to mere highway use.

The final ground centred on the existence of an old railway track running across the site. The claimant asserted that by crossing the track the local inhabitants had effectively been guilty of trespass. It transpired that there had in fact been no active use of the track since 1986 and the High Court stated that it would have been “hopeless” for a criminal prosecution to have been brought for standing or crossing over the tracks since then, when the line was not worked.

The High Court therefore upheld the decision by Essex County Council to register the land as a town or village green.

Landowner’s Appeal

In early October 2018 the landowner tried again to object to the TVG registration, this time arguing, in the Court of Appeal:

1. that the effect of registration would be to criminalise its continuing use of the port for commercial purposes; and
2. that any recreational use on the land had been on the basis of permission which could be implied from the hitherto interaction of commercial and recreational use.

The landowner’s appeal failed on both counts and the implications for landowners are significant.

The Court of Appeal decided that, although there existed some Victorian statutes [2] which could, technically, potentially expose the landowner to criminal prosecution for the carrying out of some of its port activities on a TVG, those statutes now had to be construed as part of the TVG registration system as it had been interpreted by the courts.  In the case of R (on the application of Lewis) v Redcar and Cleveland BC [3], the Supreme Court had confirmed that the owner of a TVG is entitled to continue its pre-existing activities so long as they do not interfere unduly with the recreational rights which underpin the registration.  This will be a question of fact in each case.  In the current case, the pre-existing port use and the recreational use were held not incompatible.

The Court of Appeal also concluded that there was a difference between permission (which could negate 20 years’ user ‘as of right’), which requires some positive action on the part of the landowner; and mere tolerance of user (which could not). On the facts of this case the Court of Appeal concluded that the landowner had only tolerated – not permitted – the recreational use.

WM Comment and practical advice

Taking both the High Court’s and the Court of Appeal’s Mistley Quay decisions together, it is clear that landowners need to take the risk of TVG applications very seriously.

Whilst many landowners will be aware of the value of erecting signage, the Mistley Quay case highlights that poor positioning of even the most appropriately worded signs can result in them having little or no effect. A landowner must always consider what signs should say (should they be prohibitory or permissive); what land is covered by the signs; where signs are placed; and, crucially, how signs would appear to, and be interpreted by, those attempting to use the land.

This case also reminds landowners that they cannot necessarily rely on the statutory regime of the land as a defence to a TVG application, nor on pre-existing commercial use, nor even on potential illegality/criminality, when a peaceful co-existence between uses can be established.

In addition, this case is a clear example of the fact that land absolutely need not be the archetypal green with people dancing around maypoles, holding village fetes or listening to the sound of a ball on willow in order to meet the TVG criteria. As well as this working port, case law has seen car parks, golf courses, school playgrounds, a quarry and scrubland all registered as TVGs.

Finally, this case is a stark example of the fact that the type of recreational use that can give rise to a TVG registration can be less obvious than one might anticipate. Here, the main recreational use was simply “informal walking or wandering, with or without dogs” – seemingly a very low bar.

It is more important than ever that landowners take an informed and active role in preventing local residents from using land for activities which could be deemed lawful sports and pastimes. Landowners should seek specialist advice to enable them to apply a carefully thought-out strategic approach – which is specific to the particular parcel of land in question – to manage the risk of a TVG registration in each and every case.

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[1] TW Logistics Ltd v Essex County Council (1) and Tucker (2) [EWCA Civ 2172
[2] The Inclosure Act 1857 and the Commons Act 1876
[3] [2010] UKSC 11