When is land eligible to be registered as a town or village green?
The recent case of TW Logistics v Essex County Council provides a useful source of information on the current problems, says Alec Samuels
It is a small ancient port situated on a tidal river, a common situation around our island. A certain amount of commercial barge traffic passes through, mostly commodities, transported away in heavy lorries. There is one long quay, and some scattered buildings, warehouses, offices, and residences. The whole area is open. The public are accustomed to strolling around the port, admiring the view, walking the dog.
The landowner wants to fence the land off; the public want to continue to stroll. Often, these days, the landowner wants to develop the land for commercial and residential purposes and to exclude the public, and the public want to maintain their rights, alleged, for recreation.
So is the land eligible to be registered as a town or village green (TVG)?
Section 15(3) of the Commons Act 2006 requires a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, to have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years, and that the application to register is made within two years of any interruption or interference.
The complicated, fact-specific, and lengthy (at 233 paragraphs and 173 pages) first-instance judgment in TW Logistics Ltd v Essex County Council  EWHC 185 (Ch) may not be a great literary or authoritative attraction for the practitioner, but nonetheless does provide an interesting and useful source for current problems.
Lawful sports and pastimes
Lawful sports and pastimes are not statutorily defined, and they do not have to be spelt out on the register. They cover any form of lawful recreation, organised or non-organised, and include walking, strolling, and suchlike. Where applicable, fishing, swimming, boating, feeding the ducks, painting and drawing, and walking the dog are all capable of being included (paragraphs 136 and 201-219).
Parts of the land may be open and eminently suitable for lawful sports and pastimes, whereas other parts may be inaccessible and unusable (e.g. dense undergrowth, or muddy or swampy areas). The land as a unit is still capable of being a TVG (paragraph 204).
‘As of right’
The claimant must prove that local inhabitants’ use of the land is not ‘as of right’ and nec clam, nec vi, nec precario (or peaceable, openly, without permission). Did the owner object to the use, contest the use, or give reasonable notice to the public? A suitable notice or sign, plainly visible to all comers, will suffice (see Winterburn v Bennett  EWCA Civ 482). But the landowner should realise that a sign might not be visible; might be vandalised or removed; might be ambiguous; or might prohibit only one activity (e.g. a sign that says ‘no fishing’, ‘no mooring’, or ‘no unauthorised vehicles’). Solicitors should advise client landowners on effective signage.
The landowner may give permission for the use, which will defeat a TVG claim (paragraphs 59-64). But that permission must be clear. Mere tolerance or acquiescence in the use will not suffice for permission (paragraph 114). Not to challenge the users is potentially dangerous for the landowner.
The landowner may say that a TVG would be incompatible or inconsistent with their statutory and common law rights as an owner of property – for example, they run a business there, and heavy lorries are coming in and out all the time.
Compatibility depends upon the facts: the commercial use may not be very intense; the walkers can easily avoid the occasional lorry; there is no risk or danger; people are sensible; and there is ‘give and take’ (paragraphs 157-158) – for example, walkers crossing a golf course give way to the golfers, or the golfers give way to the walkers (see R (Lewis) v Redcar and Cleveland Council (No 2)  UKSC 11).
Conversely, the commercial activity may be so intense and dangerous, and in breach of health and safety requirements (paragraph 188), that a TVG would be quite impossible (see R (Newhaven Port and Properties Ltd) v East Sussex County Council  UKSC 7).
It is possible, though very unlikely, that registration of the land as a TVG could lead to criminal prosecution. The claimed lawful sports and pastimes could render a statutory undertaker landowner liable for breach of statutory duty (R (Newhaven Port and Properties Ltd)). And, by the same token, the claimant users could be likewise liable to criminal prosecution (paragraphs 176-187).
The role of the local authority
In the case of a disputed application to register land as a TVG, the practice of most local authorities is to appoint an independent inspector, such as a chancery barrister, give them technical assistance, and accept their recommendation. Neutrality is not a statutory requirement, but will normally be appropriate (paragraphs 35-43 and 30-34). The local authority should act ‘justly’ and in a professional manner.
Solicitors acting for the landowner should advise them of the potential risks of a TVG application, the need to carry out a full survey, and what protective measures they should take. Good signage, well maintained, may suffice, but may need to be supported by more active protection.
Solicitors acting for claimants or potential claimants should advise upon the state of the law, urge the taking of witness statements and assembling of evidence, and make a prompt application to register, as there is a two-year limitation following interference or obstruction.
Solicitors acting for the local authority should ensure that the procedures are properly followed. A helpful but neutral stance is recommended, and if the land is owned by the local authority, regard must be had to the public duty to manage public assets in the public interest.
Alec Samuels is a barrister and former reader at Southampton University