Held, appeal dismissed. (1) The registration of land as a town or village green had the effect that the public acquired a general right to use it for any lawful sport or pastime, whether or not corresponding to the particular recreational uses to which the land had been put during the 20-year qualifying period. However, the exercise of that right was subject to the “give and take” principle. The public had to use their recreational rights in a reasonable manner, having regard to the landowner’s interests as recognised in the practical arrangements which developed to allow for the co-existing use of the land during the qualifying period. The standard of reasonableness was determined by what was required of local inhabitants to allow the landowner to carry on its regular activities around which the inhabitants were accustomed to mould their recreational activities during the qualifying period. The application of that standard meant that after registration as a town or village green, the landowner had all the rights that derived from its legal title to the land, as limited by the statutory rights of the public. The landowner had the legal right to continue to undertake activities of the same general quality and level as before and it also had the right to undertake new and different activities provided that they did not interfere with the rights of the public to use the land for lawful sports and pastimes. Any disputes between the landowner and the public as to their respective rights to use the land would fall to be resolved in the civil courts. The mere fact of registration of land as a town or village green did not inform a prospective purchaser of what its entitlement to use of the land might be, but it put the purchaser on notice that town and village green rights existed and should be investigated (paras 65–68).

(2) As with almost all statutes, the Victorian statutes should be regarded as “always speaking”, so that the correct approach was to interpret their words in the light of modern conditions rather than conditions which prevailed in Victorian times. Modern conditions included subsequent legislation which introduced a process by which registration of land as a town or village green created rights for the public to use it, qualified by the principle of “give and take”. The principle had assumed greater importance in relation to modern town and village greens created by registration as the mechanism by which the respective rights of the public and of the landowner could co-exist and operate alongside each other in relation to land which did not have the quality of a traditional town and village green. That had in turn enabled the courts to give wider effect to the modern town and village green legislation for the benefit of the public. If the landowner’s pre-existing use of the land were not allowed to continue after registration, there would be a risk that the purpose of the modern legislation would be undermined and applied in a more restricted way. The Victorian statutes and the Commons Act 2006 had to be viewed as dealing with the same subject matter, namely town and village greens, and as forming a coherent statutory scheme for the protection of rights in relation to town and village greens. Since they had the same general purpose they fell to be to be interpreted as one general and coherent code. There was a conventional interpretive path available in relation to the Victorian statutes which ensured that they applied in a manner which did not cut across the purpose of the modern registration statutes, but were construed as one system explanatory of each other (paras 73–75).

(3) At common law the criminal offence which operated to protect the interests of the public in being able to enjoy a town or village green for recreational purposes was that of a public nuisance. The purpose of section 12 of the 1857 Act was to provide more effective protection for the public against nuisances affecting the use and enjoyment of town and village greens, and that purpose was reinforced by section 29 of the 1876 Act whose purpose was plainly to operate in conjunction with the 1857 Act. Public nuisance had been defined as “an act not warranted by law” which obstructed the public in the exercise or enjoyment of rights common to all the Queen’s subjects. The interpretation of the Victorian statutes in accordance with those features of the common law, and having regard to the words “without lawful authority” in section 12 of the 1857 Act offence, it would not result in the claimant’s activities being criminalised. The claimant had the legal right in the period after the registration of the land as a town or village green to carry on with what it have been doing previously on the land since its activities were “warranted by law”. Where there was a dispute about what the claimant was entitled to do, the burden of proof would be on the prosecution to show that the claimant was not entitled to act in a particular way, thereby ensuring the fair operation of the criminal law. Accordingly, the claimant’s proprietary right to continue with at least the same activities as it had carried out on the land prior to its registration as a town or village green was sufficiently clearly recognised in the Victorian statutes and were not criminalised (paras 77–86).

(4) Since the claimant had the right to continue with its activities after the registration of the land as a town or village green, those activities were “warranted by law” and were not “without lawful authority”. Therefore neither the claimant nor those assisting the claimant in its continuing activities would be committing an offence under section 34 of the Road Traffic Act 1988. The health and safety legislation had always applied irrespective of registration as a town or village green, so that registration would make no difference. The claimant would have to continue complying with that legislation by ensuring, so far as reasonably practicable, the safety of its workers and members of the public when they came on to the land. Accordingly, the claimant’s activities had not been criminalised by the Victorian statutes or by any other legislation in respect of their continuation after the registration of the land as a town or village green (paras 88–91).

(5) The concept of use “as of right” was a feature of the law of prescription and involved use of land by local inhabitants in a way which would suggest to a reasonable landowner that they believed that they were exercising a public right in circumstances where the tripatite test of nec vi, nec clam, nec precario was satisfied. Any concerns the landowner might have that its activities on the land might have to cease or might be criminalised if the land were registered as a town or village green, would not affect the quality of the use. Both the inspector and the trial judge had found on the facts that during the qualifying period the claimant had been able to observe that local inhabitants appeared to be making use of the land in the belief that they had a public right to use it, but had failed to take steps to disabuse them or prevent them from doing so. There could be no ground for appeal on that issue of fact (para 95).