When you think of a village green, what comes to mind? Cricket matches on freshly mowed grass? Village fetes around the duck pond? A port or marina? Like rocks, car parks, golf courses, school playgrounds, quarries or scrubland (all of which have been registered as villages greens), working ports, beaches and other marine property remain vulnerable to an application to be registered as a village green.

In a recent Court of Appeal judgment (TW Logistics Ltd v Essex County Council and another [2018] EWCA Civ 2172) the court was asked to consider whether part of the working port of Mistley had been properly registered as a town or village green (TVG). Section 15 Commons Act 2006 allows for an application to register land as a village green where:

“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.”

Parliament has had a number of opportunities to change the definition but has not done so.  In another case (R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7, [2015] AC 1547) a sustained attempt was made to register a tidal beach forming part of a port operated by statutory undertakers as a TVG; and the attempt failed only on technical grounds.

What are the consequences of land being registered as a village green?

The registration of an area as a TVG makes 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). In short, the public is entitled to use the land for sports and lawful pastimes, and any interference with that use is potential criminal act.

Conflicting statutory rights and duties

In the TW Logistics case, the court considered whether the fact that the statutory undertaker’s statutory duties to operate the port would conflict with the use of the land as a village green (and potentially criminalise the port use) was a material consideration in deciding whether to register land as a TVG.  The court found that it was not. In principle, although registration of a TVG curtails many potential uses of the land, the owner of the soil of a TVG is entitled to continue his pre-existing activities as long as they do not interfere unduly with the recreational rights. Likewise, members of the public exercising recreational rights must do so in a lawful way.  Therefore, there is no direct conflict of statutory duties and rights.

Lessons to be learnt

Inevitably, registration of land as a TVG can have significant practical effects on the operation of a port, marina or other commercial marine site.  Fencing land to exclude the public is not possible, which raises questions about how commercial activity can safely continue.

Parliament has amended the Commons Act 2006 to make it harder for applicants to make a TVG application to prevent development of land, but the risk of an application being made when local residents are excluded from an area that has been widely used for recreation remains high.

If you are concerned about an area of land being vulnerable to a TVG application, what can you do? Beyond self-help measures, such as erecting signs confirming that users of the land do so with your permission, or fencing the land (assuming the 20 years of use has not yet been established), there is a statutory procedure to enable landowners to deposit a map and statement, under section 15A(1) of the Commons Act 2006, with the local authority to protect their land from being recorded as a TVG.  It is a step that owners of land next to the sea commonly used by members of the public should actively consider.

Richard Bagwell is a partner in our disputes resolution team who specialises in property. If you would like to discuss the issues raised in this article or any other property disputes matter please do get in touch by telephone 01392 210700 or email drx@stephens-scown.co.uk.