The long-running case concerned the registration by the Council of part of the privately owned Port of Mistley as a Town or Village Green (TVG) following a finding by and Inspector and then, on appeal, Mr Justice Barling that the requirements of section 15 of the Commons Act 2006 had been met because a “significant number of the inhabitants of any locality…have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years…”
The principal issue in TWL’s appeal (both in the Court of Appeal and the Supreme Court) was whether registration had the consequence that the continuation of the landowner’s pre-registration commercial uses of the land would be criminalised under two Victorian statutes which prohibit certain activities on TVGs and if so whether this should act as a bar to TVG registration.
The Court unanimously dismissed TWL’s appeal (Lord Sales and Lord Burrows, with whom Lady Arden, Lady Black and Lord Stephens agreed) and held that the rights of local inhabitants to use the land for recreation following registration is subject to the “give and take” principle recognised in R (Lewis) v Redcar and Cleveland Borough Council (No 2)  UKSC 11, having regard to the right of the landowner to carry on their co-existing pre-registration activities. The Victorian statutes should be interpreted as part of the general statutory scheme for the protection of rights in relation to TVGs, including the Commons Act 2006. Since the mischief to which the Victorian statutes is directed is the prevention of public nuisances on TVGs, they do not prohibit the landowner carrying on its lawful pre-registration uses of the land. Such activities are warranted by law under the principle recognised in Lewis and will not constitute an offence. Any continuation of the coexistent uses of the registered land would not therefore give rise to criminality and any such criminality arising from intensification or alteration of a landowners use of registered land would not act as a bar to registration but is rather the proper operation of the statutory scheme for the registration and protection of TVGs.
The judgment is significant in clarifying the scope of inhabitants’ and landowners’ respective rights following the registration of land as a TVG.
Richard Wald QC acted for Mr Ian Tucker, the applicant for registration, in the Court of Appeal and the Supreme Court, where he led solicitor advocate and Birketts LLP Partner, Richard Eaton. The full judgment can be read here and the Supreme Court’s press summary can be read here.