Can land registered as a town or village green retain commercial use?

In the recent case of TW Logistics Limited v Essex CC the court was asked to decide whether registration of a working quayside as a town or village green prevented the landowner from using the land for its pre-existing commercial purpose.

A town or village green is an area of open space that, by longstanding custom, has been used by the local residents for recreation – it is not necessarily ‘green’ or in the centre of a village as many might expect. The local authority registered the land (in this case part of a working quayside) as a town or village green in recognition of its use for lawful sports and pastimes throughout the previous 20 years, in response to attempts by the landowner to fence the quayside as a health and safety measure.

Once land is registered as a town or village green, it is a criminal offence to damage or interrupt the use of it, or to drive over it without lawful authority. The landowner in this case argued that registering the quayside as a town or village green would criminalise the continuing use of the land for commercial purposes, including the passage of vehicles on the dock, loading and unloading and temporary storage of materials.

However, the Court of Appeal found that the recreational and commercial uses were compatible and had co-existed over time. There, registration of the land as a town or village green did not prevent the landowner from using the land for its simultaneous commercial purpose, as long as the use remained in harmony with the recreational rights protected by the registration.

It is important to note that while registration as a town or village green will not necessarily stand in the way of continued commercial activities, it will almost certainly prevent a company from expanding or changing its operation on the land, and will in all likelihood thwart future development of a site which is likely to have a significant impact on the value of the land.

The existence of registered town and village greens is therefore a concern for all property buyers, but is a particular risk to developers who will be keen to ensure that an appropriate search is carried out with the Local Authority to check that no such registration exists. Unfortunately that is not to say that a registration will not be made in the future and advice should always be sought where there is any possibility of the existence of a town or village green.

Fenella Eddell is a solicitor in the property department at Barker Gotelee, Suffolk solicitors.

(This article first appeared in the East Anglian Daily Times, 7 November 2018)

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