The distinction is important because use of a public right of way cannot be counted as a recreational purpose ‘as of right’ as set out in the 2006 Commons Act, which governs the registration of TVGs, according to a planning law expert at Pinsent Masons, the law firm behind Out-Law.com.
The case was “a useful reminder of the guidance” set out in a case known as Trap Grounds, in which both public rights of way and TVG rights existed on the same piece of land, planning law expert Elizabeth Wiseman said.
“What is clear is that there is no fixed formula for how a public right of way should be a discounted from the use attributed to a TVG right,” she said. “Whether such use should be discounted is an objective test that needs to be made from the point of view of a reasonable landowner.”
“When considering whether the use of public rights of way should be discounted it will be important to distinguish between users who use a public right of way as a means of moving from A to B and those that use the public right of way for another form of recreational activity, for example dog walking or jogging, If the use of the public right of way has no recreational purpose then this must be discounted. Therefore, landowners should be seeking to make clear assertions that users of any public rights of way, or potential public rights of way, on the land are using it for that purpose only,” she said.
“However, landowners should not be waiting until an application to register their land as a TVG is made to argue that no rights have been established. There are a number of simple steps that landowners should take to ensure that their land is protected from an attempt to thwart any future development,” she said.
Under the Commons Act, land in England and Wales may be registered with the local authority as a TVG provided that it has been used by a significant number of local inhabitants for lawful recreational purposes over a period of at least 20 years. However, that land must have been used ‘as of right’, rather than by way of specific permission from the landowner. Once registered, local residents have a recognised right to use that land for recreation and it is an offence for the landowner to wilfully do anything that will interrupt that use or injure the land.
In April 2013, local resident Robert Steward applied to Oxfordshire County Council to register Humpty Hill as a TVG. When landowners Charles Alloway and Rosemary Pollock objected, the council appointed a barrister to hold a public inquiry and make a recommendation. In September 2015, the barrister recommended that the land be registered as a TVG.
Alloway and Pollock began a judicial review of the council’s decision, which relied on two grounds. They argued that the barrister not sufficiently discounted the use of the paths on the land as public rights of way when establishing its use for recreational purposes, and that he had failed to properly consider the Commons Act requirement that there needed to be a “significant number of inhabitants in the locality” using the land. This required a sufficient geographic spread among the residents, they claimed.
Although allowing the judicial review application, the judge rejected both of these arguments. It was clear from reading the barrister’s report that he came to his judgement “as a result of his findings of the use of the land as a whole”, and that he had not excluded the use of the paths as a public right of way altogether, she said.
“The inspector was well aware that the starting point had to be what a reasonable landowner would think,” the judge said.
“Having reviewed the evidence in his first report he concluded that the owners of the land must have been aware – insofar as they turn their minds to it – that the combination of informal recreational activities that he set out in [the report] were taking place and that they took only cursory steps to prevent or restrict it. It was a classic example of recreation and low-level agriculture existing happily side by side,” she said.
It was also irrelevant that the “great preponderance” of users of the land came from within 200 yards of it, rather than from across the locality as a whole, she said. There was nothing in the Commons Act requiring the users of the land to come from further afield, and this was something that “could have easily been inserted” into the statute if parliament intended for it to be the case, she said.