The Court of Appeal has recently considered the effect of registration of a private quayside as a Town or Village Green (TVG) on the landowner’s continued use of the land as a working quayside.
In TW Logistics Limited v Essex CC & Another [2018], the High Court held that part of the landowner’s land had been properly registered as a TVG, but that the public’s recreational use of the land did not displace or exclude and was not incompatible with the landowner’s carrying on of commercial activities. The Court of Appeal upheld this decision, reiterating that there was a sensible co-existence between the two uses.
The landowner appealed to remove the quayside from the register of TVGs on two bases:
- The effect of TVG status criminalised his use of the land for commercial purposes and left him exposed to criminal prosecution under the Victorian statutes intended to protect TVGs; and
- The recreational use of the land did not qualify for registration as a TVG as it had been under the landowner’s implied permission.
In dismissing point one, the court held that there is no suggestion in case law that the existence of the Victorian statutes affected the quality of recreational use required for land to be registered as a TVG. Further, the landowner’s continued use of the land was permitted by the TVG registration scheme which gives the landowner a legal right to continue using the land as before where the use is not incompatible with recreational use.
In dismissing point two, the court held that there had been no implied permission by the landowner but that the use had been “as of right” in accordance with relevant requirements. Registration could not therefore be resisted on this ground.
Perhaps the more serious consequence of this decision for the landowner is that registration of the land as a TVG seriously restricts the landowner’s freedom to alter or develop the land in the future. TVGs are often triggered by potential development on land and registration is a way that locals can protect the land and prevent development from happening.
This case serves as a useful reminder to anyone that owns land which is being used by the public to make sure that any use is only with the landowner’s permission. Failing this, there may be serious consequences for what can be done with or on the land in the future. Recent case law has established that if a landowner does not permit the use of his land by members of the public, this can be easily dealt with by erecting clearly visible signs. This will be enough to prevent use by others being “as of right” and their use will, therefore, be unauthorised and not permissive.
If you would like advice in this area our experienced Commercial Property and Property Litigation lawyers can help. You can contact us by calling 0161 941 4000 or by emailing lawyers@myerson.co.uk.