Are you buying or do you own sites which include open land? Planning team consultant Nigel Hewitson highlights how you may be at risk of land being registered as a "town and village green". This can happen even where the site is far from green - even industrial sites are at risk. He also outlines how registration affects landowners, actions for landowners and points to consider when buying open land.
Town and Village Greens: Court of Appeal Delivers a Salutary Lesson to Landowners
A judgement handed down by the Court of Appeal on 5 October 2018 has underlined the risks that landowners and potential landowners run of finding their land declared a town or village green if they take no action to stop the public using their land.
In TW Logistics Ltd v Essex County Council & Anor  EWCA Civ 2172 the Court of Appeal unanimously ruled that part of a working wharf on the River Stour at Mistley in Essex was properly designated as a town or village green (TVG). Despite the use of the wharf for loading and unloading cargo, members of the public had been able to show, as is required by section 15 of the Commons Act 2006, that part of the land had been used without the owner's consent for "lawful sports or pastimes" - in this case "walking or wandering, with or without dogs…and people often standing and having a chat with others in association with such wanderings" - for at least 20 years.
The port operator (TW Logistics) accepted that there had been co-existence of both recreational and commercial activities on the TVG throughout a 20-year period. However, it argued (among other points) that registration as a TVG should not be confirmed on the basis that permission for recreational use could be implied from the interaction of the two uses. Nevertheless, the Court was clear that "it is important to distinguish between permission on the one hand, and toleration or acquiescence on the other". Permission, which could potentially negate the 20 years' user, required some positive action on the part of the landowner. Mere tolerance or acquiescence could not defeat the application to register a TVG. In the present case, the evidence was that TWL had tolerated rather than permitted the use.
The lessons for landowners are clear. It doesn't take a great deal of activity by the public to found a claim to register a TVG. Walking, wandering or even standing around chatting will do! The registration of a TVG is not just limited to traditional green space. In addition to the wharf in the present case; rocks, car parks, golf courses, school playgrounds, a quarry and scrubland have all been registered as TGVs. An attempt to register a tidal beach forming part of a port operated by statutory undertakers failed only on technical grounds.
Such registration can significantly restrict future activity - especially future development - and therefore the value of the land. In the present case TWL's submission that the TVG registration effectively prevented them using the port facility more intensively in the future made no difference. The court simply commented that that was the natural consequence of TVG registration.
So what should you be doing to avoid TVG registration adversely affecting you?
In relation to existing landholdings:
- physically prevent access (one day a year should meet the case);
- put up signs in prominent positions indicating that access is with the owner's permission; and
- regularly check fencing and repair any breaches.
Where you are buying open land you should:
- carefully inspect the land. Are there holes or gaps in the fencing which would facilitate access? Are there worn paths (which are not public footpaths) indicating that people are in the habit of wandering over the land? Are there people on the land? Ask them what they are doing there; and
- raise detailed pre-contract enquiries informed by your inspection about the use of the land by third parties
When it comes to the risk of designation as a town or village green; be safe not sorry!