A quayside operated by a private landowner is confirmed as a green
When the Victorian statutes criminalising activities that inhibit use of land as a green were enacted, Parliament had no inkling that they would apply to the very different types of land that have since been registered as town or village greens. Farmland, golf courses, car parks, playgrounds, parks, a quarry and scrubland have all qualified for registration as greens.
TW Logistics Ltd v Essex County Council [2018] EWCA Civ 2172; [2018] PLSCS 169 concerned the registration of a quayside in the Port of Mistley. The quay formed part of a concrete apron that was used by lorries and other vehicles when ships docked. But local inhabitants had also used the waterfront for recreation for decades – and applied to register it as a green when, prompted by the concerns of the Health and Safety Executive, the owner and operator of the port erected a fence to prevent people from falling into the water.
The port operator, a private landowner, argued that its commercial activities on the quayside would contravene the Victorian statutes governing the use of greens. Therefore, so the argument went, the quay was ineligible for registration as a green. But, following a non-statutory public inquiry, the council registered the waterfront as a green and the High Court upheld the decision. The judge ruled that the uses had co-existed. Locals had visited daily, using the quayside to walk, play, chat with acquaintances and catch crabs, and for other pastimes, and the fact that pedestrians avoided vehicles, or that goods were stored or lorries were parked on the quayside for relatively short periods, did not mean that recreational uses had been displaced or excluded.
When the Victorian statutes criminalising activities that inhibit use of land as a green were enacted, Parliament had no inkling that they would apply to the very different types of land that have since been registered as town or village greens. Farmland, golf courses, car parks, playgrounds, parks, a quarry and scrubland have all qualified for registration as greens.
TW Logistics Ltd v Essex County Council [2018] EWCA Civ 2172; [2018] PLSCS 169 concerned the registration of a quayside in the Port of Mistley. The quay formed part of a concrete apron that was used by lorries and other vehicles when ships docked. But local inhabitants had also used the waterfront for recreation for decades – and applied to register it as a green when, prompted by the concerns of the Health and Safety Executive, the owner and operator of the port erected a fence to prevent people from falling into the water.
The port operator, a private landowner, argued that its commercial activities on the quayside would contravene the Victorian statutes governing the use of greens. Therefore, so the argument went, the quay was ineligible for registration as a green. But, following a non-statutory public inquiry, the council registered the waterfront as a green and the High Court upheld the decision. The judge ruled that the uses had co-existed. Locals had visited daily, using the quayside to walk, play, chat with acquaintances and catch crabs, and for other pastimes, and the fact that pedestrians avoided vehicles, or that goods were stored or lorries were parked on the quayside for relatively short periods, did not mean that recreational uses had been displaced or excluded.
The Court of Appeal has upheld the decisions. It ruled that, once the criteria for registration have been established, there is no further impediment to registering land as a green, unless there is some special statutory provision to the contrary. The Victorian statutes do not constitute such an impediment. Therefore, potential liability under the Victorian statutes was not a bar to registering the quayside as a green.
Lord Justice Lewison, who delivered the leading judgment for the court, explained that the balance between the landowner’s use and the recreational use during the qualifying period before registration will prevail afterwards too. So, where such uses have co-existed compatibly for over 20 years, the landowner will be legally entitled to continue its use after registration and there ought to be no reason to think that its hitherto lawful activities will expose it to the risk of criminal liability and sanctions – provided that it does no more, after registration, than it used to do beforehand. But registration might well prevent the landowner from significantly expanding its operations on the land in question.
What then of the Health and Safety Executive’s concerns that people might fall into the water? Lord Justice Lewison noted that it had not actually been alleged that the port operator was contravening health and safety law. And he considered that the risk of prosecution under generally applicable legislation should not, of itself, prevent registration of the land as a green.
Allyson Colby is a property law consultant
