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14th November 2018

Court of Appeal upholds registration of quayside as town or village green

Land can be registered as a town or village green (TVG) if it has been used by local inhabitants for lawful sports and pastimes openly and without the permission of the landowner for at least 20 years.
TW Logistics Ltd, the owner of land at Mistley, Essex used as a private commercial port, appealed against the registration of an area of land on the quayside as a TVG. The land is effectively a concrete apron and had been used by the public for various recreational activities, including dog walking and crabbing, for a period of more than 20 years. During this period, port-related commercial activities co-existed with the recreational use, with locals avoiding areas where HGVs or forklift trucks were operating.

The landowner argued that the registration as a TVG effectively made its commercial activities illegal under nineteenth century laws which prevent interference with recreational rights on a TVG. The Court of Appeal rejected this argument, finding that the landowner would be able to carry on with its pre-registration commercial activities on the TVG land as long as these did not interfere with the recreational rights of the public. The pre-registration co-existence of the two uses demonstrated that they were compatible with each other, and such compatible uses could continue post-registration.

The landowner also claimed that, because the recreational use of the quay was interrupted when commercial activities were taking place, the public had only used the land at other times with its implied permission. The Court also rejected this argument, finding that temporary exclusion of the public while commercial activities were taking place was not sufficient to communicate permission to the public to use the land at other times. Tolerating public use of the land when the landowner was not using it did not amount to granting permission. If two rights co-exist over land, there may be occasions where they cannot be enjoyed at the same time, but this does not mean that the temporary exclusion of the public by commercial activities prevents registration as a TVG.

Although the landowner can continue its current activities on the TVG land, one result of the registration is that the landowner may be prevented from expanding its business operations, and any future development of the land will certainly be restricted. Registration as a TVG therefore severely limits a landowner’s ability to deal with the land. This case is a reminder that landowners should ensure that any use of their land by the public is by permission only, and that such permission should be expressly granted by use of appropriately worded signs or otherwise.

The case is also a useful reminder that any land may be subject to registration as a TVG, regardless of its appearance or use, and that the risk is not confined to land fitting the traditional concept of a village green.
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