Council defeats legal challenge to registration of part of port as village green

Essex County Council has defeated a challenge to its decision to register land that is part of the Port of Mistley as a town or village green (TVG).

The claimant in TW Logistics Ltd v Essex County Council & Anor [2017] EWHC 185 (Ch) had urged the High Court to rectify the TVG register by removing the land, and declare that the land was not a TVG.

Essex, as registration authority, contended that the claim should be dismissed on the basis that the land was correctly registered. The second defendant, Ian James Tucker, had worked within view of the land for many years and was the original applicant for registration. He also sought to uphold the registration.

The grounds of the claim, as formulated in TWL's skeleton argument, were:

(1) any qualifying recreational user of the land in question had been rendered contentious, and so not "as of right" for the purposes of the 2006 Act, well in excess of two years before Mr Tucker made his registration application, which was therefore out of time;

(2) during the 20-year period to September 2008 there had been various signs in place which were effective to render recreational user of the land contentious, alternatively permissive, and so not "as of right";

(3) the commercial vehicular use of the land had been incompatible with its use for "lawful sports and pastimes" and registrability as a TVG, and/or any recreational use of the land had not been of the requisite quality to amount to the assertion of a right;

(4) the land had not been used for "lawful sports and pastimes" within the meaning of section 15 of the 2006 Act, but rather in the manner of a highway;

(5) registration of the land as a TVG would be incompatible with the statutory regime under which the Port of Mistley was operated;

(6) recreational use of the land would have involved the commission of a criminal offence (trespassing on a railway line or siding contrary to s.55 of the British Transport Commission Act 1949).

Mr Justice Barling rejected the claim, saying the matters raised by TWL whether taken cumulatively or individually did not provide grounds for the registration to be reversed or amended.