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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> TW Logistics Ltd v Essex County Council & Anor (Rev 3) [2018] EWCA Civ 2172 (05 October 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2172.html Cite as: [2018] 3 WLR 1926, [2019] Ch 243, [2019] 3 All ER 312, [2018] EWCA Civ 2172, [2019] 1 P & CR 20 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
Mr Justice Barling
HC-2014-001550
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LINDBLOM
and
LORD JUSTICE DAVID RICHARDS
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T W LOGISTICS LIMITED |
Appellant |
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- and – |
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(1) ESSEX COUNTY COUNCIL (2) IAN JAMES TUCKER |
Respondents |
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MR ANDREW SHARLAND QC (instructed by Essex Legal Services) for the 1st Respondent
MR RICHARD WALD and MR RICHARD EATON (Solicitor Advocate) (instructed by Birketts LLP) for the 2nd Respondent
Hearing dates : 17th and 18th July 2018
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Crown Copyright ©
Lord Justice Lewison:
Introduction
"… in a rural parish any unenclosed open space which is wholly or mainly surrounded by houses or their curtilages and which has been continuously and openly used by the inhabitants for all or any such purposes [i.e. lawful sports and pastimes] during a period of at least 20 years without protest or permission from the owner of the fee simple…"
"The commission obviously felt some concern about allowing any land whatever to become a deemed village green after 20 years use by local inhabitants for sports and pastimes."
"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."
The facts
"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."
The judgment
"It is established beyond doubt that throughout the qualifying period there has often been very little if any commercial movement on the Land for substantial periods, particularly (but by no means exclusively) at weekends and in the evenings. Further, my assessment based on the totality of the evidence put before me is that even during busier periods the commercial activity has rarely if ever been so intense as to preclude or discourage locals from visiting Allen's Quay to pursue their pastimes. I consider the virtually continuous passage of commercial vehicles across the Land, … as unlikely in fact to have occurred other than perhaps in short bursts on relatively infrequent occasions."
"In any event, the overwhelmingly convincing picture painted by the inhabitants' evidence is one of sensible co-existence, with generally courteous conduct and give and take on both sides. The case law makes clear that such give and take can be consistent with use "as of right". In my view there was no question of the exclusion or displacement of recreational pastimes by reason of the commercial activity that was taking place on Allen's Quay. The fact that pedestrians got out of their way when lorries passed over the Land, or that goods were stored or lorries parked on the Land for relatively short periods, does not amount to displacement or exclusion of the relevant pastimes engaged in on Allen's Quay, such as to preclude the continuity or quality of use required by the relevant principles of law. Further, TWL has not suggested that commercial activities on Allen's Quay have been adversely affected by the recreational activities of the public."
"It is to be noted that many witnesses in the present case stated that they did not perceive there to be a significant risk in their or their children's use of Allen's Quay. There was no evidence of any member of the public ever having been injured by reason of commercial activity on Allen's Quay."
"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." (Original emphasis)
The essential arguments on appeal
i) the effect of registration would be to criminalise the landowner's continuing use of the TVG for the same commercial purposes as took place throughout the 20-year period, and for that reason the recreational use does not have the necessary quality to support the registration;
ii) permission for recreational use can be implied from the interaction of the two uses; or
iii) the two uses are not concurrent but are sequential.
i) Potential criminalisation is not of itself a bar to registration of a TVG; and
ii) On the facts found by the judge there was no implied permission or sequential use.
Continuing use after registration as a TVG
"The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded, which is a right to come into the close to use it in the exercise of any lawful games or pastimes, and are thereby trespassers."
"… 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."
"[100] … 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.
[105] I would, therefore, hold that in this different situation the owner remains entitled to continue his use of the land as before."
"… the theme that runs right through all of the law on private and public rights of way and other similar rights is that of an equivalence between the user that is relied on to establish the right on the one hand and the way the right may be exercised once it has been established on the other. …In other words, one looks to the acts that have been acquiesced in. It is those acts, and not their enlargement in a way that makes them more intrusive and objectionable, that he afterwards cannot interfere to stop. This is the basis for the familiar rule that a person who has established by prescriptive use a right to use a way as a footpath cannot, without more, use it as a bridleway or for the passage of vehicles."
"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 if in practice they were not." (Emphasis added)
Is potential criminalisation a bar to registration as a TVG?
"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 [pay a fine]."
"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 twelve of the 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."
"(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."
"… the theme that runs right through all of the law on private and public rights of way and other similar rights is that of an equivalence between the user that is relied on to establish the right on the one hand and the way the right may be exercised once it has been established on the other."
"On principle it must be that the recreational use in such circumstances is subservient to the rights of the owner of the land and the commoners … In the event of conflicting priorities, the original property rights of owners and commoners should prevail. Thus, for example, if the land is traditionally cut for hay, the existence of the recreational use will not allow inhabitants to enter and spoil the hay. On the other hand it also seems, as a matter of principle, that the owners of the land, or rights over the land, may not exercise their rights in such a way as to wilfully inhibit or prevent the rights of recreation."
"[63] …Prior to the enactment of the nineteenth-century legislation the two rights could coexist; each right was conditional upon it not being exercised in such a way as to deliberately obstruct the exercise of the other.
[64] Since the enactment of s.12 of the 1857 Act it has not been possible to establish such conditional rights. Rights of common can no longer be created by prescription over a village green: if the grazing is with the owner's permission it will not be "as of right", and if it is "without lawful authority" it will be a criminal offence and thus will not give rise to a prescriptive right: see Massey v Boulden …per Simon Brown L.J. at para. [9].
[65] Moreover, s.12 makes any act "to the interruption of the use or enjoyment [of a village green] as a place for exercise and recreation …" a criminal offence. Whatever may be the position in relation to those customary rights which had been established by 1857, where haymaking and recreational use were able to coexist, no such rights can have been established after the enactment of s.12. If a village green is established, any other use involving acts which would interrupt its use for enjoyment and recreation are effectively prohibited. It is difficult to see how the various steps that are necessary to gather a hay crop (as opposed to mowing grass to keep it short and useable for recreational purposes) could be said not to amount to such an interruption.
[66] Section 29 of the 1876 Act, to which the Inspector did not refer, makes any effective agricultural use of a village green even more difficult. The erection of fencing ("inclosure"), or a shelter or water trough ("any erection") to facilitate the use of the land for grazing would be prohibited, as would ploughing and re-seeding ("disturbance or interference … with the soil"). The occupation of the soil for the purpose of taking a grass crop, involving the steps described by Mr Pennington (above), would not be "with a view to the better enjoyment of [the] village green", and would thus be deemed to be a public nuisance.
[67] Mr George submitted that the words "without lawful authority" in s.12 were a recognition that pre-existing commoners' rights of grazing could continue, and were not an acknowledgement of the landowner's right to graze cattle on a village green. I agree with the Inspector (14.45) that s.12 permits the landowner (or his tenant or licensee) "to place his cattle on the green at least in any manner which is not incompatible with the village green rights". I further agree that "the converse would be that [even after 1857] village green rights can be established in circumstances where there happens to be some lawful, and compatible, grazing …". Given the restrictions imposed by ss.12 and 29 (above) such grazing would have to be very low key indeed (as was the case in the Sunningwell) in order to be lawful and compatible with the establishment of village green rights.
[68] For the reasons set out above I do not agree with the Inspector's conclusion that village green rights can be established where land is being used for the growing, and cutting, drying, baling etc. of a hay crop. The Inspector refers at the end of para.14.45 to "hay cutting". The occupation of land for the purpose of "hay cutting" is not to be equated with grass cutting. The former is no different in principle to the harvesting of any other crop. Insofar as the latter is carried out "with a view to the better enjoyment of [the] village green" as such, it will not be a public nuisance under s.29, nor will it be a criminal offence under s.12. When enacting the definition of "town or village green" in s.22(1) of the Act, Parliament must be assumed to have been well aware of the restrictions that would be placed upon newly created village greens by the nineteenth-century legislation. Against that background, it would be surprising if Parliament had intended that a level of recreational use which was compatible with the use of the land for agricultural activities (such as taking a hay crop) should suffice for the purposes of s.22(1), since upon registration as a village green (if not after 20 years use) some, if not all, of those lawful agricultural activities would become unlawful by virtue of ss.12 and 29. Moreover, the prospect of improving the land agriculturally, by fencing, or by ploughing or re-seeding, would be lost."
"The registration of the Beach as a town or village green would make it a criminal offence to damage the green or interrupt its use and enjoyment as a place for exercise and recreation—section 12 of the Inclosure Act 1857…—or to encroach on or interfere with the green— section 29 of the Commons Act 1876…. See the Oxfordshire case … per Lord Hoffmann, at para [56]."
"Where there is a conflict between two statutory regimes, some assistance may be obtained from the rule that a general provision does not derogate from a special one (generalia specialibus non derogant)…"
"The ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour."
"Use of the report land as a golf course by the Cleveland Golf Club would have been in breach of Inclosure Act 1857 section 12 and Commons Act 1876 section 29 if the report land had been a town or village green. It was a use which conflicted with the use of the report land as a place for informal recreation by local people. It was not a use which was with a better view to the enjoyment of the report land as a town or village green."
"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."
"Whether the Victorian statutes, to which I have already referred, apply to a class c town or village green has no conceivable relevance to the registration issue."
"The proposition that 'as of right' is sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor stealth, nor the licence of the owner) is established by high authority."
"In the light of that description it is, I think, possible to analyse the structure of section 15(4) in this way. The first question to be addressed is the quality of the user during the 20-year period. It must have been by a significant number of the inhabitants. They must have been indulging in lawful sports and pastimes on the land. The word "lawful" indicates that they must not be such as will be likely to cause injury or damage to the owner's property.…And they must have been doing so "'as of right': that is to say, openly and in the manner that a person rightfully entitled would have used it. If the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right…, the owner will be taken to have acquiesced in it—unless he can claim that one of the three vitiating circumstances applied in his case. If he does, the second question is whether that claim can be made out. Once the second question is out of the way—either because it has not been asked, or because it has been answered against the owner—that is an end of the matter. There is no third question."
"… while the principle of equivalence tells one in general terms what the land may be used for, there may be some asymmetry as to the manner of its use for that purpose before and after it has been registered. But it does not follow that, where the use for recreation has coexisted with the owner's use of the land during the 20-year period, the relationship of coexistence is ended when registration takes place."
"The inhabitants must have used it as if of right but that requirement is satisfied if the use has been open in the sense that they have used it as one would expect those who had the right to do so would have used it; that the use of the lands did not take place in secret; and that it was not on foot of permission from the owner. If the use of the lands has taken place in such circumstances, it is unnecessary to inquire further as to whether it would be reasonable for the owner to resist the local inhabitants' use of the lands."
Would continuing use be a criminal offence?
"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…. This was accepted by Sullivan J in R (Laing Homes Ltd) v Buckinghamshire County Council [2004] 1 P & CR 573, 588."
"It was not necessary in that case to consider the issue which arises here: that is, the potential conflict between the general village green statutes and a more specific statutory regime, such as under the Harbours Acts. It is at least arguable in my view that registration should be confirmed if the necessary use is established, but with the consequence that the 19th century restrictions are imported subject only to the more specific statutory powers governing the operation of the harbour."
"… when one is looking at the combined effect of two statutes, concerned with the same general subject-matter, even if separated by a substantial period of time, the intention of Parliament is not necessarily to be derived solely from the most recent. They must be looked at together."
"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 as explanatory of each other."
"A person is guilty of a public nuisance (also known as common 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." (Emphasis added)
"I think the word "enjoy" used in this connection is a translation of the Latin word "fruor" and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it."
"the duty … 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."
Implied permission
"I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use."
"It is for this reason in particular that I am in emphatic agreement with Lord Hope DPSC in his view that one must focus on the way in which the lands have been used by the inhabitants. Have they used them as if they had the right to use them? This question does not require any examination of whether they believed that they had the right. That is irrelevant. The question is whether they acted in a way that was comparable to the exercise of an existing right? Posed in that way, one can understand why the Court of Appeal considered that the examination of the relevant question partook of an inquiry as to the outward appearance created by the use of the lands by the inhabitants. On that basis also one can recognise the force of Mr Laurence QC's argument that it was necessary to show not only that the lands had been used nec vi, nec clam, nec precario but also that it was reasonable to expect the landowner to resist the use of the land by the local inhabitants."
"The essential underpinning of both these assertions, however, 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."
"For the reasons that Lord Hope DPSC and Lord Walker JSC have given, the view that this was the effect of the relevant authorities in this area may now be discounted…. 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."
"But it would be wrong to assume, as the inspector did in this case, that deference to the owner's activities, even if it is as he put it overwhelming, is inconsistent with the assertion by the public to use of the land as of right for lawful sports and pastimes. It is simply attributable to an acceptance that where two or more rights coexist over the same land there may be occasions when they cannot practically be enjoyed simultaneously." (Emphasis added)
"Taking a single hay crop from a meadow is a low-level agricultural activity compatible with recreational use for the late summer and from then until next spring. Fitch v Fitch (1797) 2 Esp 543 is venerable authority for that."
"successive periods during which recreational users are first excluded and then tolerated as the owner decides. An example would be a fenced field used for intensive grazing for nine months of the year, but left open for three months when the animals were indoors for the worst of the winter." (Emphasis added)
"even during busier periods the commercial activity has rarely if ever been so intense as to preclude or discourage locals from visiting Allen's Quay to pursue their pastimes."
"… there is on any view a body of evidence before me indicating that local inhabitants did not consider their recreational use of the Land to be impeded in a significant way by the transit or parking of HGVs and other dock transport, or by the temporary storage of goods thereon. It seems to me that the situation is very far from the kind of exclusion to which Lord Bingham was referring in Beresford's case [2004] 1 AC 889, which sends an unequivocal message to users that the owner is regulating access to and use of his land. It is much closer to the Lewis v Redcar [2010] 2 AC 70 position, where walkers paused while golfers took their shots. In any event, I do not see how, on the facts of this case, by simply continuing their commercial activities the land owners could be said to be communicating to locals their permission for recreational pastimes to take place."
Result
Lord Justice Lindblom:
Lord Justice David Richards: