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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> TW Logistics Ltd v Essex County Council & Anor [2021] UKSC 4 (12 February 2021) URL: https://www.bailii.org/uk/cases/UKSC/2021/4.html Cite as: [2022] 1 P & CR 10, [2021] UKSC 4, [2021] 2 WLR 383, [2021] AC 1050, [2021] WLR(D) 94, [2021] 3 All ER 395 |
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[2021] UKSC 4
On appeal from: [2018] EWCA Civ 2172
JUDGMENT
T W Logistics Ltd (Appellant) v Essex County Council and another (Respondents)
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before
Lady Black Lady Arden Lord Sales Lord Burrows Lord Stephens
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JUDGMENT GIVEN ON |
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12 February 2021 |
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Heard on 2 and 3 December 2020 |
Appellant |
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Respondent (1) |
David Holland QC |
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Andrew Sharland QC |
Toby Watkin |
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Katherine Taunton |
(Instructed by Wilkin Chapman LLP (Lincoln)) |
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(Instructed by Essex County Council) |
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Respondent (2) |
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Richard Wald QC |
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Richard Eaton |
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(Instructed by Birketts LLP (Ipswich)) |
Respondents:-
(1) Essex County Council (“the Council”)
(2) Ian James Tucker
LORD SALES AND LORD BURROWS: (with whom Lady Black, Lady Arden and Lord Stephens agree)
1. Introduction and overview
1. This case raises some important issues about the law relating to the registration of a town or village green (“TVG”) under the Commons Act 2006. The use of the phrase “town or village green”, particularly the word “green”, conjures up an image of the archetypal village green with its area of grass where local inhabitants can walk and play. Hence the initial surprise on reading the facts of this case where the TVG in issue, as registered by the first defendant and respondent, Essex County Council (“the Council”), is an area of concrete of some 200 square metres (which we shall refer to as “the Land”) on, or close to, the water’s edge in a working port and across which port vehicles, including heavy goods vehicles (“HGVs”), are driven. It is clear, however, that the modern statutory concept of a TVG is much wider than the traditional village green. So it is that registered TVGs have included, for example, an area of rocks used for the mooring of boats, partly submerged scrubland (Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674 - “the Trap Grounds case”), and disused quarries.
5. On 28 November 2014 TWL commenced these proceedings for rectification of the register, to remove the registration of the Land as a TVG, pursuant to section 14 of the Commons Registration Act 1965, and for a declaration that the Land is not a TVG. Barling J dismissed TWL’s claim: [2017] EWHC 185 (Ch); [2017] Ch 310. An appeal by TWL against that decision was dismissed by the Court of Appeal (Lewison LJ, with whom Lindblom and David Richards LJJ agreed): [2018] EWCA Civ 2172; [2019] Ch 243. TWL now appeals to this court.
2. Relevant legislative provisions
“15. Registration of greens
(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.
(2) This subsection applies where -
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application.
(3) This subsection applies where -
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the time of the application but after the commencement of this section; and
(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b).
…”
9. Section 12 of the Inclosure Act 1857 (20 & 21 Vict c 31) (as amended) reads as follows:
“12. Proceedings for prevention of nuisances in town and village greens and allotments for exercise and recreation
And whereas it is expedient to provide summary means of preventing nuisances in town greens and village greens, and on land allotted and awarded upon any inclosure under the said Acts as a place for exercise and recreation: If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof before two justices, upon the information of any churchwarden or overseer of the parish in which such town or village green or land is situate, or of the person in whom the soil of such town or village green or land may be vested, forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding [level 1 on the standard scale] … and every such penalty as aforesaid shall be recovered in manner provided by the Summary Jurisdiction Act 1848; and the amount of damage occasioned by any such offence as aforesaid shall, in case of dispute, be determined by the justices by whom the offender is convicted; and the payment of the amount of such damage, and the repayments of the money necessarily expended in the removal of any manure, soil, ashes, or rubbish, shall be enforced in like manner as any such penalty.”
10. Section 29 of the Commons Act 1876 (39 & 40 Vict c 56) says this:
“29. Amendment of law as to town and village greens
‘… An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section 12 of the said Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned. This section shall apply only in cases where a town or village green or recreation ground has a known and defined boundary.’”
“(1) Subject to the provisions of this section, if without lawful authority a person drives a mechanically propelled vehicle -
(a) on to or upon any common land, moorland or land of any other description, not being land forming part of a road, …
he is guilty of an offence.”
13. Section 3(1) of the 1974 Act provides that:
“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
14. Regulation 17(2) of the 1992 Regulations requires that
“Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size.”
By Regulation 17(5),
“[Regulation 17(2)] shall apply so far as is reasonably practicable …”
3. The facts
15. We here draw upon the very thorough judgment of Barling J (who himself made detailed reference to the lengthy and detailed report of the Inspector), especially at [2017] EWHC 185 (Ch), paras 6-17 and 144-160.
26. The Inspector said this at para 16.142 of his report:
“As it happens, Allen’s Quay at Mistley … could in my view be seen as having the slight air about it of a town or village ‘square’ (albeit in this case on the one side open to the water of the estuary), rather than looking like a classic ‘green’. I mean this in the sense of its being a hard-surfaced, multi-purpose publicly accessible area in or near the centre of a settlement, and with buildings around at least some of the sides.”
(i) Throughout the qualifying period (September 1988 - September 2008) there was very little commercial activity on the Land for substantial periods, especially at weekends and in the evenings. Even during busier periods, the commercial activity was rarely so intense as to discourage locals from visiting the Land to pursue their pastimes.
(ii) There was generally courteous conduct and give and take on both sides. Pedestrians moved out of the way as the lorries passed over the Land. But there was no exclusion or displacement of recreational pastimes on the Land by reason of the commercial activity; and the commercial activities of TWL were not adversely affected by the recreational pastimes of the public.
(iii) Many witnesses stated that that they did not perceive there to be a significant risk in their, or their children’s, use of the Land; and there was no evidence of any member of the public having been injured there by commercial activity.
Barling J concluded on this co-existence point as follows (at para 160):
“For these reasons, … I do not accept … that the recreational uses of the Land in the qualifying period were displaced or excluded by, or incompatible with, the commercial activity carried on there. I find on the evidence that there was in fact sensible and sustained co-existence between the two groups of users.”
4. Barling J’s reasoning on the law
(i) This case was distinguishable from R (Newhaven Port & Properties Ltd) v Essex County Council [2015] UKSC 7; [2015] AC 1547 (“Newhaven”). In that case it was held that a beach could not be registered as a TVG because it was part of a port that was operated by the landowner pursuant to specific statutory obligations to do so which were incompatible with such registration. In contrast, TWL was not subject to statutory obligations to operate the port at Mistley. In Barling J’s words, “I do not consider that the Newhaven case bears on the present case, which concerns a privately owned port whose proprietor does not hold it for any specific statutory purpose and is subject only to general obligations” (para 179).
(ii) Any potential criminal liability of TWL under the Victorian statutes did not give rise to statutory incompatibility such as to preclude either (a) the registration of the Land as a TVG or (b) the continuation in the post-registration era of the feasible co-existence, which had factually occurred, between the commercial and recreational uses of the Land (para 179).
(iii) In any event, prosecutions of TWL under the Victorian statutes would be unlikely to succeed where the activity complained of was not materially different in kind or intensity from that carried out in the qualifying period. Barling J saw this as essentially turning on a factual examination of TWL’s activities. For example, such an activity would be unlikely to represent an act “to the interruption of the use and enjoyment [of the TVG] as a place for exercise and recreation” within section 12 of the Inclosure Act 1857 given that factually it had not had that effect in the qualifying period (para 183). Similarly, there were strong grounds for arguing that the occasional temporary storage of cargo or other goods on the Land or occasional parking of HGVs there did not fall within the words in section 12 of “wilfully lay[ing] any … other matter or thing” because of the eiusdem generis rule of interpretation in a context where the related references in the section were to “manure, soil, ashes or rubbish” and “or to do any other act whatsoever to the injury of the [TVG] or to the interruption of the use or enjoyment [of the land]” (para 184). It was equally unlikely that the occasional temporary storage of material on part of the Land would amount to “occupation of the soil thereof … made otherwise than with a view to the better enjoyment of such town or village green …” within section 29 of the Commons Act 1876 because, in the context of the opening words of that section, the word “occupation” indicated something more than a temporary use of the TVG of that kind (para 185).
(iv) As regards section 34 of the RTA 1988, TWL had acknowledged that the consent given to its own operators meant that there was “lawful authority”, unless the Victorian statutes applied, so that reliance on section 34 largely fell away given Barling J’s reasoning on the Victorian statutes (set out in (ii) and (iii) above). As regards other operators, it was indicated that they would have the same defence based on TWL’s authorisation (para 187).
(v) In relation to the health and safety legislation, the judge pointed out that:
“[w]hereas any restrictions or exposure to criminal sanctions under the Victorian statutes were only capable of arising post-registration, TWL’s (and its predecessors’) obligations under health and safety legislation have existed (at least in the case of the fundamental provisions in the 1974 Act and the 1992 Regulations) for many years.” (para 194)
There was no reason to think that the approach of TWL or of the Health and Safety Executive as to what was “reasonably practicable” was likely to change because of registration.
(vi) The conclusion reached, therefore, was that not only factually but also legally the two sets of uses, commercial and recreational, could co-exist post-registration.
5. The Court of Appeal’s reasoning
(i) The effect would be to criminalise the landowner’s continuing use of the TVG for the same commercial purpose as took place throughout the 20-year qualifying period, for which reason the recreational use did not have the necessary quality to support the registration (“the first ground”).
(ii) Permission for recreational use could be implied from the interaction of the two uses, with the result that the recreational use could not be regarded as having been “as of right” (“the second ground”).
(iii) The two uses in the 20-year period had not been concurrent but sequential, and this was insufficient to meet the requirements of the Commons Act 2006 (“the third ground”).
33. In relation to the first ground, Lewison LJ referred to the decision of this court in R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 2 AC 70 (“Lewis”) to explain that the landowner of a TVG is entitled to continue its pre-existing activities as long as they do not interfere unduly with the public’s recreational rights (paras 24-36). Although registration could enlarge the recreational rights available beyond the activities of local inhabitants on the area of a TVG in the 20-year qualifying period, the principle of “give and take” recognised in Lewis has the effect that the landowner can continue to use its land in the way that it did before registration, where that use is compatible with recreational use. Whether or not the two sets of uses are compatible is essentially a question of fact. In this case, Barling J had found as a fact that the two uses were compatible and an appeal court should not interfere with that careful evaluation.
“The Victorian statutes should not be construed so as to make illegal that which, under the statutory registration scheme, is legal if another reasonable construction is possible.” (para 71)
In this case, such a reasonable construction was possible. The purpose of the Victorian statutes was to prevent public nuisances (as shown, for example, in the preamble to section 12 of the 1857 Act). Two consequences for the interpretation of the Victorian statutes followed from this linkage to public nuisance. First, an act “warranted by law” does not amount to a public nuisance (in line with the definition of a public nuisance in R v Rimmington [2005] UKHL 63; [2006] 1 AC 459). Since, by application of the “give and take” principle as explained in Lewis, the landowner has the legal right to continue with the same use of its land as had existed in the 20-year qualifying period, the continuation of that use is “warranted by law”. Secondly, the relevant use and enjoyment by the public that is protected by virtue of registration of a TVG, and that the landowner cannot interfere with, is limited by the rights of the landowner to continue with its pre-existing activities. There is therefore no public nuisance, and hence no criminal activity under the Victorian statutes, where the landowner carries on with its pre-existing activities. Lewison LJ put it this way at para 73:
“In my judgment what is in question is the use of the particular TVG under consideration. In a case to which the principle of co-existence articulated in Lewis applies, that use is the use for which the TVG has actually been put as a place for recreation and exercise; namely recreational use compatible with the land owner’s pre-registration commercial activities. If the land owner simply carries on doing what he has done before there is no interruption of that use.” (Emphasis in original)
6. The grounds of appeal to this court
(i) Land should not be registered as a TVG if the effect of registration would be to criminalise the landowner’s continuing use of that land for the same commercial purposes as took place throughout the 20-year qualifying period (Ground 1).
(ii) The Court of Appeal misinterpreted section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876: on their correct construction TWL’s activities post-registration would be criminalised (Ground 2).
(iii) The quality of the user by the local inhabitants in this case was not such as to qualify the land for registration as a TVG (Ground 3).
7. Ground 2: would TWL’s activities be criminalised under the Victorian statutes (or any other legislative provision) if they were to be continued after the registration of the Land as a TVG?
(1) The rights of the public and the landowner following registration of land as a TVG
45. It was initially thought (see New Windsor Corpn v Mellor [1975] Ch 380) that registration as a TVG conferred no rights on the public that they did not already have; and as a 20-year user of land “as of right” for lawful sports and pastimes did not create rights at common law, it was thought that registration conferred no rights on the public. The Commons Registration Act 1965 was silent on this question and it was said, therefore, that Parliament needed to attend to this as a lacuna in the law on TVG registration. That “no rights” view was subsequently rejected by the courts. As explained in the review of the development of the law relating to registration of TVGs in the judgment of Lord Carnwath and Lord Sales in R (Lancashire County Council) v Secretary of State for the Environment [2019] UKSC 58; [2020] 2 WLR 1 (“Lancashire”), paras 3-11, the courts have proceeded to work out the meaning and effect of section 22 of the 1965 Act (which became section 15 of the Commons Act 2006) by drawing on analogies in the common law.
46. The tripartite test (see above para 35) for whether use of land by local inhabitants is “as of right” draws on the English common law in relation to the acquisition of easements, rights of common, and public rights of way by prescription: see R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335 (“Sunningwell”), 349-354 (Lord Hoffmann, with whom the other members of the appellate committee agreed); Lancashire, para 9. An analogy has been drawn between the rights of the public to use a TVG for recreational purposes and rights of common existing at common law to use someone else’s land for such purposes, as discussed in Fitch v Fitch 2 Esp 543: see the Trap Grounds case, paras 51-52 per Lord Hoffmann (with whom Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe agreed).
49. We would add that rights of easement, which have some similarities with the rights to indulge in lawful sports and pastimes claimed pursuant to registration of land as a TVG, are also subject to a general requirement at common law that they be exercised reasonably, and with respect for the competing rights and interests of the owner of the land over which they exist: see Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620, para 45 (Lord Scott of Foscote). In Lewis, at para 48, Lord Walker called attention to this point as offering guidance for resolution of any conflict between a landowner and local inhabitants in relation to the use of a TVG. Such a principle makes a good deal of sense where two people have concurrent rights exercisable in relation to the same area of land.
51. Lord Hoffmann made further reference to this idea, at para 59, in rejecting the landowner’s submission in that case that registration of land as a TVG involved an infringement of its right to respect for its property under article 1 of the First Protocol to the European Convention on Human Rights as given effect in domestic law by the Human Rights Act
1998. Lord Hoffmann held that there was no deprivation of property for the purposes of article 1 of the First Protocol because “the owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation”. In the present case, Mr Holland does not seek to revive any argument based on article 1 of the First Protocol and the interpretive obligation under section 3 of the
Human Rights Act 1998.
“one has to look at the provisions about greens in the 1965 Act like those of any other legislation, assuming that Parliament legislated for some practical purpose and was not sending commons commissioners round the country on a useless exercise. If the Act conferred no rights, then the registration would have been useless, except perhaps to geographers, because anyone asserting rights of recreation would still have to prove them in court.”
The 1965 Act did not provide for registration of specific rights of recreation to reflect the particular forms of recreation which had been carried out on the land in question over the 20-year qualifying period, but rather for registration as a TVG. His Lordship’s view was that the rights conferred by registration as a TVG were “the rights which the statute treated as creating a village green, namely the right to indulge in sports and pastimes” (para 53).
“In my view, the rational construction of [the 1965 Act] is that land registered as a town or village green can be used generally for sports and pastimes. It seems to me that Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well. This would be in accordance with the common law, under which proof of a custom to play one kind of game gave rise to a right to use the land for other games: see the Sunningwell case [2000] 1 AC 335, 357A-C.”
That was referred to, in the submissions of counsel before us, as the “one size fits all” principle, following the characterisation by Lord Walker at para 127 of the category of rights created by Lord Hoffmann’s interpretation of the statute. This is, however, not a complete description of the legal position mapped out by Lord Hoffmann, since he immediately explained at para 51 that the rights of the inhabitants were subject to the “give and take” principle described above. But it is fair to say that the full implications of that principle were not spelt out in his speech.
“104. I agree [with Lord Hoffmann] that the effect of registration under the 1965 Act of a class c town or village green is to confer on the local inhabitants rights of recreation over the land. …
105. But I do not agree that registration can authorise local inhabitants to enjoy recreative user of the land that is different in kind from the 20 years’ user that has satisfied the statutory criteria for registration or that would diminish the ability of the landowner to continue to use the land in the manner in which he has been able to use the land during that 20-year period. I do not accept that a tolerant landowner who has allowed the local inhabitants to use his grass field for an annual 5 November bonfire for upwards of 20 years must, after registration, suffer his field to be used throughout the year for all or any lawful sports and pastimes with the consequential loss of any meaningful residual use that he could continue to make of the field. …
106. While, therefore, I agree with Lord Hoffmann that registration of the [land in issue in this case] as a class c town or village green would entitle the local inhabitants to recreative rights of user over it, those rights would, in my opinion, be commensurate with the nature of the user that had led to that result and would not necessarily extend to the right to use the land for all or any lawful sports or pastimes.”
Lord Scott did not examine whether there was any principle of “give and take” which qualified the use by the public of the rights conferred on them by registration as a TVG.
“The critical question to my mind is what are the respective rights of the landowner (‘the owner’) and the local inhabitants (‘the locals’) over land once it is registered as a town or village green?”
He went on at paras 100-102:
“100. So far from this question begging that as to the right to registration (the ultimate question at issue here), it seems to me one which necessarily should be resolved before it can sensibly be decided what must be established in order to have the land registered. Indeed, I may as well say at once that, were it the law that, upon registration, the owner's continuing right to use his land as he has been doing becomes subordinated to the locals’ rights to use the entirety of the land for whatever lawful sports and pastimes they wish, however incompatibly with the owner continuing in his, I would hold that more is required to be established by the locals merely than use of the land for the stipulated period nec vi, nec clam, nec precario. If, however, as I would prefer to conclude, the effect of registration is rather to entrench the previously assumed rights of the locals, precluding the owner from thereafter diminishing or eliminating such rights but not at the expense of the owner’s own continuing entitlement to use the land as he has been doing, then I would hold that no more is needed to justify registration than what, by common consent, is agreed to have been established by the locals in the present case.
101. This is not merely because in my opinion no other approach would meet the merits of the case. Also it is because, to my mind, on the proper construction of section 15 of the Commons Act 2006, the only consequence of registration of land as a green is that the locals gain the legal right to continue to ‘indulge’ in lawful sports and pastimes upon it (which previously they have done merely as if of right) - no more and no less. To the extent that the owner’s own previous use of the land prevented their indulgence in such activities in the past, they remain restricted in their future use of the land. The owner’s previous use ex-hypothesi would not have been such as to have prevented the locals from satisfying the requirements for registration of the land as a green. No more should the continuance of the owner’s use be regarded as incompatible with the land’s future use as a green. Of course, in so far as future use by the locals would not be incompatible with the owner continuing in his previous use of the land, the locals can change, or indeed increase, their use of the land; they are not confined to the same ‘lawful sports and pastimes’, the same recreational use as they had previously enjoyed. But they cannot disturb the owner so long as he wishes only to continue in his own use of the land.”
He then examined whether the Trap Grounds case bound him to take a different view and concluded that it did not because this issue “simply did not arise” in that case (para 104). He went on:
“105. I would, therefore, hold that in this different situation the owner remains entitled to continue his use of the land as before. If, of course, as in the [Trap Grounds] case itself, he has done nothing with his land, he cannot complain that upon registration the locals gain full and unqualified recreational rights over it. But that is not the position I am considering here.”
60. Lord Kerr of Tonaghmore took the same view as Lord Brown:
“114. The essential underpinning of [counsel for the defendants’] assertions … was the view that the registration of the lands as a village or town green had the inexorable effect of enlargement of the inhabitants’ rights and the commensurate diminution of the right of the owner to maintain his pre-registration level of use, if that interfered with the inhabitants’ extended use of the lands.
115. … [T]he view that this was the effect of the relevant authorities in this area may now be discounted. For my part, I find it unsurprising that this view formerly held sway. [Counsel for the defendants] (without direct demur from [counsel for the claimants]) informed us that it was the universal opinion of all who practised in this field that the inevitable consequence of the decision in [the Trap Grounds case] [2006] 2 AC 674 was that local inhabitants acquired unrestricted rights of recreation after registration. Passages from the speech of Lord Hoffmann in that case - particularly at para 51 - appeared to lend support for the notion that general, unrestricted rights of recreation over the entire extent of the lands followed upon registration. And the speech of Lord Scott of Foscote certainly seemed to imply that he apprehended that this was the outcome of the decision by the majority. Whatever may have been the position previously, however, it is now clear that, where it is feasible, co-operative, mutually respecting uses will endure after the registration of the green. Where the lands have been used by both the inhabitants and the owner over the pre-registration period, the breadth of the historical user will be, if not exactly equivalent to, at least approximate to that which will accrue after registration.”
“… I think that one must assume … that it was Parliament’s intention that practical common sense would be the best guide to the way the public right was to be exercised once the land had entered the register.”
62. At para 63 Lord Hope expressed his disagreement with an assumption made by Sullivan J in the case of R (Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin); [2004] 1 P & CR 36, that registration of a field as a TVG would be inconsistent with the landowner using it for an annual hay crop, as he had done during the 20-year qualifying period. At paras 70-74 Lord Hope rejected the assumption made in the courts below in Lewis “that the effect of registration would be to enlarge the right of the local inhabitants in a way that would effectively prevent the golfers from using the land for their own purposes”. He affirmed the application of the principle of “give and take” in this context, following Lord Hoffmann’s speech in the Trap Grounds case at para 51 and drawing on the analogy with the law on easements and rights of way and on the analysis in Fitch v Fitch.
“Lord Hoffmann [in the Trap Grounds case] made clear that, following registration, the owner was not excluded altogether, but retained the right to use the land in any way which does not interfere with the recreational rights of the inhabitants, with ‘give and take on both sides’ (para 51). That qualification was further developed in R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, in which it was held that the local inhabitants’ rights to use a green following registration could not interfere with competing activities of the landowner to a greater extent than during the qualifying period.”
(2) The Victorian statutes
70. In obiter dicta in the Trap Grounds case, Lord Hoffmann said (para 57):
“There is virtually no authority on the effect of the Victorian legislation. The 1857 Act seems to have been aimed at nuisances (bringing on animals or dumping rubbish) and the 1876 Act at encroachments by fencing off or building on the green. But I do not think that either Act was intended to prevent the owner from using the land consistently with the rights of the inhabitants under the principle discussed in Fitch v Fitch 2 Esp 543. This was accepted by Sullivan J in R (Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin); [2004] 1 P & CR 573, 588. In that case the land was used for ‘low-level agricultural activities’ such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes. No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so ‘as of right’. But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 [of the Commons Registration Act 1965] if in practice they were not. Nor do I follow how the fact that, upon registration, the land would become subject to the 1857 and 1876 Acts can be relevant to the question of whether there has been the requisite user by local inhabitants for upwards of 20 years before the date of the application. I have a similar difficulty with para 141 of the judgment of Judge Howarth in Humphreys v Rochdale Metropolitan Borough Council (unreported) 18 June 2004, in which he decided that acts of grazing and fertilising by the owner which, in his opinion, would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition.”
In Lord Hoffmann’s view, therefore, the Victorian statutes did not have the effect of criminalising activity of the landowner carried out on the land after its registration as a TVG at the same level as it had been carried on during the qualifying period.
71. This issue was not revisited in this court in Lewis. It had been an important point for the inspector in that case, who in a report dated 14 March 2006 followed the decisions in the Laing Homes case and Humphreys v Rochdale Metropolitan Borough Council in suggesting that the activities of the landowner golf club would have been made criminal by the Victorian statutes after registration; partly for that reason, the inspector recommended that the land in issue should not be registered as a TVG (see the account set out in Lewis by Lord Walker, at paras 9-12). That report was overtaken by the handing down of the decision of the House of Lords in the Trap Grounds case. In the light of Lord Hoffmann’s speech in that case at para 57, the inspector produced a further report in which he accepted that his reasoning based on the Victorian statutes was wrong, while maintaining his recommendation that the land should not be registered as a TVG by reason of a distinct argument that the local inhabitants had not made use of the land “as of right” because they showed “deference” to those playing golf (the relevant part of the inspector’s further report is set out in the judgment of the Court of Appeal in the Lewis case: [2009] EWCA Civ 3; [2009] 1 WLR 1461, para 12). Thereafter, in the litigation in the Lewis case, it was not suggested that the Victorian statutes would criminalise the continued playing of golf or the operation of the golf club.
73. As with almost all statutes, one should regard the Victorian statutes as “always speaking”: see, eg, R v Ireland [1998] AC 147, 158-159. This means that the correct approach is to interpret the words of the Victorian statutes in the light of modern conditions rather than conditions that prevailed in Victorian times. Modern conditions include the introduction in 1965, as confirmed by the enactment of section 15 of the Commons Act 2006, of a process by which registration of land as a TVG creates rights for members of the public to use it as such and the availability of a statutory right to seek registration of forms of land which, as Lewison LJ in the Court of Appeal said (para 66), could not plausibly have been contemplated as being a TVG when the Victorian statutes were enacted.
“Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and explanatory of each other.”
79. The leading recent case on the crime of public nuisance generally - the facts had nothing to do with TVGs - is R v Rimmington [2005] UKHL 63; [2006] 1 AC 459. In that case, at paras 10 and 45, the House of Lords relied on Archbold, Criminal Pleading, Evidence and Practice (then in its 2005 edition but see now the 2021 edition, para 31-40) for the following definition of the crime of public nuisance (but deleting the reference to “morals”):
“A person is guilty of a public nuisance … who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.”
80. Interpreting the Victorian statutes with these features of the common law offence in mind, we consider that Lewison LJ was correct to hold that the activities of TWL would not be criminalised by the Victorian statutes where those activities are “warranted by law”. This underlying feature of the Victorian statutes is reflected in the words “without lawful authority” in section 12 of the 1857 Act, which qualify the offence created in so far as it applies in relation to the activity of wilfully leading or driving any cattle or animal on the TVG. It is difficult to see any reason why that particular activity should be singled out for special treatment as a matter of law, and it makes more sense to read this phrase as a particular reminder in the context of a regular and perfectly normal activity on a TGV (normal for the time, so far as concerns driving cattle, and still normal so far as concerns, eg, walking dogs) that this general limitation has to be taken into consideration. It seems legitimate to read the provision in this way because the Inclosure Act 1857 was drafted in the less rigorous style which was normal before the creation of the Office of Parliamentary Counsel in 1869 and the adoption of more precise forms of drafting which followed (see R (Andrews) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 669, para 30).
84. The conclusion regarding the true meaning and effect of the Victorian statutes which Lewison LJ reached, and which we reach as well, is a consequence of the application of ordinary principles of statutory interpretation. The criminal law is often formulated by reference to general standards of behaviour, eg in relation to the offences of careless and inconsiderate driving and gross negligence manslaughter and the use of the standard of being “reasonably practicable” in the offences under the health and safety legislation (paras 13-14 above, which Mr Holland did not suggest was improperly uncertain). A court is not entitled to depart from the meaning of a statutory provision arrived at on the basis of ordinary principles of interpretation, on the grounds that it might have preferred greater precision in the formulation of an offence. Indeed, there is a long-standing principle of statutory interpretation, designed to avoid cases of doubtful penalisation, which precisely deals with any problems which might arise from a lack of precision in the formulation of an offence (see Tuck & Sons v Priester (1887) 19 QBD 629, 638 per Lord Esher MR; Craies on Legislation, 12th ed (2020), para 19.1.14).
(3) Other criminal legislation
(4) Conclusion on Ground 2
8. Ground 1: should land not be registered as a TVG if the effect of registration would be to criminalise the landowner’s continuing use of that land for the same commercial purposes as took place throughout the 20-year qualifying period?
9. Ground 3: was the quality of the user by the local inhabitants in this case not such as to qualify the land for registration as a TVG?
95. As the House of Lords made clear in Sunningwell, [2000] 1 AC 335, 349-356 (per Lord Hoffmann), the concept of use “as of right” is a feature of the law of prescription and involves use of land by the local inhabitants in a way which would suggest to a reasonable landowner that they believed that they were exercising a public right in doing so, in circumstances where the tripartite test of nec vi, nec clam, nec precario is satisfied. Although a landowner might be concerned at the thought that its activities on the land might have to cease, or might be criminalised, if the land were registered as a TVG, that would not be something which affected the quality of the use of the land by the local inhabitants, as a reasonable landowner would perceive it. The local inhabitants would not share that concern and might well welcome the confirmation and enhancement of their rights which would follow registration. The idea that the acquisition of TVG rights by prescription depends on acquiescence by the landowner, as explained in Sunningwell, simply means that the landowner has been able to observe over a long period of time that the local inhabitants have appeared to be making use of the relevant land in the belief that they had a public right to use it and failed to take steps to disabuse them or prevent them from doing so. In this case, the Inspector and Barling J both found that, on the facts, the use of the Land by the local inhabitants during the qualifying period had this quality. There are no good grounds for an appeal on such an issue of fact.
10. Conclusion
97. For the reasons given above, we would dismiss this appeal.