T W Logistics Ltd v Essex County Council and another

Registration of land as a town or village green gives the public a general right to use it for lawful sports and pastimes. That right is subject to reasonable give and take with the landowner. The owner may continue activities of the same general quality and level as during the qualifying period, and may undertake new activities which do not interfere with the public’s rights.

The Victorian legislation protecting greens forms a coherent statutory scheme with modern registration legislation. It does not criminalise an owner’s continuation of pre-registration activities which are warranted by the owner’s retained property rights. Recreational use is “as of right” where it objectively appears to a reasonable owner to be an assertion of public right and is neither by force, stealth nor permission. Users’ reasonable accommodation of the owner’s concurrent activities does not negate that quality.

The appellant operated a privately owned port. Local inhabitants had used a concrete area within the port for walking and other recreation while commercial vehicles and port activities used the same land. Following a public inquiry, the first respondent registered the land as a town or village green under section 15(3) of the Commons Act 2006.

The appellant sought rectification of the register. Barling J dismissed the claim in [2017] EWHC 185 (Ch). The Court of Appeal dismissed a further appeal in [2018] EWCA Civ 2172.

The Supreme Court considered whether registration criminalised the continuation of the appellant’s established commercial activities under the Victorian legislation or other enactments. It also considered whether the inhabitants’ accommodation of those activities prevented their recreational use from being “as of right”.

1. The appeal was dismissed unanimously. Registration as a town or village green gives the public a general right to use the land for any lawful sport or pastime. The right is nevertheless subject to give and take between the public and the landowner. Lord Sales and Lord Burrows delivered the judgment, with which Lady Black, Lady Arden and Lord Stephens agreed.

2. The public must exercise its recreational rights reasonably, having regard to the landowner’s interests and to the practical arrangements which allowed the uses to coexist during the qualifying period. The owner retains the rights derived from its title, subject to the public’s statutory rights. It may continue activities of the same general quality and level as before registration. Reasonable fluctuations and some intensification may be permitted. New activities are also permissible if they do not interfere with the public’s recreational rights.

3. Sections 12 and 29 of the Inclosure Act 1857 and the Commons Act 1876 protect the public’s rights against conduct having the character of public nuisance. Those statutes and the modern registration legislation concern the same subject matter and must be construed as a coherent code. The statutes are always speaking and therefore apply to the modern statutory concept of a green.

4. The owner’s continuation of its established commercial activities was warranted by law because its underlying property rights survived registration. Such activities neither constituted public nuisance nor interrupted the public’s legally protected enjoyment, which was itself qualified by the owner’s retained rights. The Victorian statutes therefore did not criminalise those activities. The prosecution would bear the burden of proving that particular conduct fell outside the owner’s entitlement.

5. Continued vehicular use was undertaken with lawful authority for section 34 of the Road Traffic Act 1988. The health and safety legislation had applied before registration and continued to do so afterwards. Its requirement of reasonable practicability was to be understood in light of the owner’s right to continue its commercial operations.

6. The court did not decide whether registration would be precluded if it truly criminalised an owner’s established activities. That hypothetical issue did not arise, and the court’s silence did not endorse the reasoning below on it.

7. Use is “as of right” where it would suggest to a reasonable owner that inhabitants believed they were exercising a public right, and it satisfies the requirements that it be neither by force, stealth nor permission. Acquiescence means that the owner observed such apparent use over time but did not prevent it or disabuse the users. The inhabitants’ reasonable accommodation of concurrent commercial activities did not negate their assertion of right.

1. United Kingdom Supreme Court: Dismissed the appeal and affirmed the registration of the land as a town or village green: [2021] UKSC 4.
2. Court of Appeal: Dismissed the landowner’s appeal from Barling J: [2018] EWCA Civ 2172; [2019] Ch 243.
3. High Court, Chancery Division: Barling J dismissed the claim for rectification of the register and a declaration that the land was not a town or village green: [2017] EWHC 185 (Ch); [2017] Ch 310.