Town and Village Greens

February 15th, 2017

The claim in TW Logistics Ltd v Essex County Council (2017) EWHC 185 (Ch)  involved the question whether an area of land forming part of the Port of Mistley in Essex (“the Land”) should remain registered as a town or village green (“TVG”) pursuant to the Commons Act 2006 (“the 2006 Act”), or whether the TVG register should be rectified by the de-registration in whole or in part of the Land by the exercise of the Court’s jurisdiction under Section 14 of the Commons Registration Act 1965 (“the 1965 Act”).  The Claimant, TW Logistics Limited (“TWL”) sought an order that the TVG register be rectified by the removal of the Land, and a declaration that the Land is not a TVG. The First Defendant, the Registration Authority (“Essex CC”), contended that the claim should be dismissed on the basis that the Land was correctly registered. There was no dispute about the approach which Barling J should take in dealing with the claim. It was common ground that the correct approach to a claim for rectification under Section 14 of the 1965 Act is to be found in a passage from the judgment of Lightman J in Betterment Properties (Weymouth) Ltd v Dorset County Council [2007] 2 All ER 1000, at paragraphs 14-16 inclusive, with which the Court of Appeal expressly agreed ([2009] 1 WLR 334).

Thus, as Barling J observed, the Court’s jurisdiction to rectify the register under Section 14 is neither appellate nor supervisory in nature. It is not confined to a review of the registration authority’s decision, based only on the material which was before the authority when it made its decision. Subject to any directions the Court may make, it can receive additional evidence (as it had in the present case), and should determine what (if any) amendment to the register ought to have been made and whether rectification would be “just”, having regard to all the information available to it, including, where appropriate, the evidence which was before the public inquiry and/or the findings of the inquiry.  In these circumstances, TWL was correct in submitting that the focus in the present case should not be on whether and in what respects the Inspector’s (and therefore Essex CC’s) conclusions were flawed, but rather on whether having regard to the totality of the evidence (“old” and “new”) before Barling J, the Land or any part of it ought not to have been registered as a TVG pursuant to Section 15(3) of the 2006 Act.  The Report was part of the evidence but Barling J was not in any way bound by the Inspector’s findings, and had to reach his own view, applying the relevant law.

Grounds 1 and 2 concerned whether the use of the Land for lawful sports and pastimes was “as of right”. These Grounds failed on the facts. Grounds 3 and 5 concerned whether there was an incompatibility between use of the Land as a TVG on the one hand and commercial use or the relevant statutory register on the other hand and with whether the recreational use was of the requisite quality.  These Grounds failed on the facts. There was sensible and sustained co-existence between the two groups of users, with appropriate give and take throughout the qualifying period, rather than exclusion or displacement of recreational uses, which at all relevant times had been “as of right”. The two sets of users could feasibly and sensibly continue to exist post-registration as they have in the qualifying period. Ground 4 alleged that the land was not used for lawful sports and pastimes within the meaning of Section 15 of the 2006 Act. This Ground also was rejected on the facts.  The claim failed.  The arguments raised by TWL, whether taken individually or cumulatively, did not provide grounds for the registration to be reversed or amended.

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