Quay questions answered

Allyson Colby explores the latest town or village green case, this time involving a working quay in Essex. Key points Landowners are entitled to continue to use land that has been registered as a green in the way that they did beforehand The law should not be interpreted to criminalise the actions of landowners who do no more after registration than they did previously Registration may prevent landowners from significantly expanding their activities on land that has been registered as a green The relationship between recreational uses of land that has been registered as a town or village green and the ability of landowners to continue to use that land themselves has troubled the courts on more than one occasion. Land is susceptible to registration if local inhabitants have used it for lawful sports and pastimes, as of right, for at least 20 years. It is not necessary for the sole, or even principal, use of the land to be for recreational purposes and the fact that users have always deferred to the landowner’s activities is not a bar to registration. Furthermore, once land is registered as a green, landowners interfere with recreational use at their peril, thanks to Victorian statutes that criminalise activities that interfere with the use and enjoyment of greens. Competing uses The land in dispute in TW Logistics Ltd v Essex County Council [2018] EWCA Civ 2172; [2018] PLSCS 169 was a quayside in the Port of Mistley. The quay formed part of a concrete apron that was used by lorries, forklifts and other vehicles when ships docked. However, 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 (HSE), the owner and operator of the port erected a fence to prevent people falling off the quay. It might be thought that the quayside was safe from registration, thanks to R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7, [2015] EGLR 29. However, that case concerned land held for statutory purposes that were inconsistent with registration as a green and, in this case, the port operator was a private landowner, and not a statutory undertaker. The operator argued that the quay was ineligible for registration because it would be unable to continue its commercial activities on the land without exposing itself to the risk of criminal prosecution. It suggested that operating heavy goods vehicles, depositing pallets, and loading and unloading cargo onto the quay would fall foul of section 12 of the Inclosure Act 1857 (which deals with interruptions to use or enjoyment), section 29 of the Commons Act 1876 (which deals with encroachments, disturbances and interferences), and section 34 of the Road Traffic Act 1988 (which prohibits the use of mechanically propelled vehicles on land that is not a road). It would not matter that locals might steer clear when necessary; deterring them from exercising their recreational rights would be an offence. But the commons registration authority decided that local inhabitants had used the quayside for lawful sports and pastimes “as of right” for the requisite period and registered the land as a green despite the operator’s concerns. Both the High Court and the Court of Appeal have upheld the decision. Co-existence The Court of Appeal noted that R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 1 EGLR 153 had put paid to absolutist suggestions that co-existence between the use that a landowner makes of its land and recreational use as a green is impossible. There may be cases in which uses cannot co-exist. And whether uses are compatible is a question of fact. However, evidence that local inhabitants have deferred to a landowner’s activities may indicate that, in practice, such uses can sensibly co-exist. Furthermore, once the requirements for registration have been satisfied, there will be no impediment to registering land as a green unless the landowner can point to some special and conflicting statutory provision. The statutes to which the operator had referred could not be categorised as such an impediment. Therefore, potential criminal liability under those statutes was not a bar to registering land as a green. What then of the HSE’s concerns that people might fall off the quayside? 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 land as a green. Post-registration rights Registration entrenches recreational rights, so that they cannot be diminished or eliminated. The land may then be used for other forms of recreation too. However, such rights must be exercised in accordance with the principle of “give and take” because Lewis established that, where uses have co-existed compatibly during the pre-registration period, landowners will be entitled to continue to use their land as they have previously done so as long as they do not interfere unduly with the recreational use. If a landowner’s own use did not interrupt the use and enjoyment of land as a place for exercise and recreation before registration, the court found it difficult to see how the continuation of such use could do so in the future. Enjoyment of a green is enjoyment of the particular green, as registered, warts and all. Therefore, the Victorian statutes should not be construed in a way that would criminalise activities that would otherwise be legal, if another reasonable construction is possible. Similar thinking applies in relation to section 34 of the 1988 Act too. So landowners ought not to be exposed to the risk of criminal liability and sanctions, if they do no more after registration than they did beforehand. However, the court did acknowledge that registration may prevent proprietors from significantly expanding their activities on land registered as a green. Allyson Colby is a property law consultant Photo: © Bob Jones / Mistley Quay / CC BY-SA 2.0