Supreme Court upholds registration of land in working port as town and village green

An area of concrete in a working commercial port was validly registered by a county council as a town and village green, the Supreme Court has ruled.

The land in question in T W Logistics Ltd v Essex County Council and another [2021] UKSC 4 lies along the quayside in Mistley port in Essex (“the land”).

The appellant, TWL, owns and operates Mistley port. It has been using the land for the passage of port vehicles, including heavy goods vehicles, and the temporary storage of cargo on the quayside.

Concurrently with these commercial activities, the land has also been used by local inhabitants to walk dogs, to stop and chat on the quayside, and for general recreation.

These two sets of activities have co-existed for many years, the Supreme Court noted.

In September 2008, following concerns about people falling into the water and a threat by the Health and Safety Executive of enforcement action, TWL erected a 1.8 metre high chain link metal fence along the quayside.

On 18 August 2010, a local inhabitant, Ian Tucker, applied to Essex County Council to register a large part of the quay as a TVG pursuant to section 15(3) of the Commons Act 2006.

In 2013, the council appointed an inspector to hold a non-statutory public inquiry. While the inspector excluded several other parts of the quay from the application, he found that the land satisfied the statutory criteria: it had been used “as of right” for lawful sports and pastimes by significant numbers of local inhabitants for the preceding 20 years.

The council duly registered that land as a TVG. TWL challenged that registration in the High Court on a number of grounds, all of which were dismissed. The Court of Appeal upheld the High Court’s decision. TWL appealed to the Supreme Court.

The Supreme Court (Lady Black, Lady Arden, Lord Sales, Lord Burrows, Lord Stephens) dismissed TWL’s appeal.

Lord Sales and Lord Burrows gave the sole judgment, with which the other members of the Court agreed.  They said six legislative provisions were relevant to this appeal:

• Section 15 of the Commons Act 2006 provides that land may be registered as a TVG where a significant number of local inhabitants indulged as of right in lawful sports and pastimes on that land for at least 20 years.
• Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 (the “Victorian statutes”) make it a criminal offence to interfere with a TVG in a number of different ways, including by interrupting local inhabitants from using it as a place for exercise and recreation.
• Section 34 of the Road Traffic Act 1988 (the “RTA 1988”) makes it an offence to drive a vehicle on a TVG without lawful authority.
• Two health and safety provisions (the “health and safety legislation”) require an employer to protect members of the public from risks to their health and safety.

TWL advanced three grounds of appeal:

1. Land should not be registered as a TVG if that would criminalise the landowner’s existing commercial activities;
2. On the facts of this case, TWL’s commercial activities would be criminalised after registration; and
3. The use of the land by the local inhabitants was not “as of right”.

The Supreme Court considered Ground 2, namely whether TWL’s commercial activities were criminalised after registration.

The Court noted that inhabitants had to exercise their rights over a TVG in a fair and reasonable way, so as to respect the concurrent reasonable and established use by the landowner. This had become known as the principle of “give and take”.

Lord Sales and Lord Burrows said: “Registration of land as a TVG has the effect that the public acquire the general right to use it as such, which means the right to use it for any lawful sport or pastime (whether or not corresponding to the particular recreational uses to which it was put in the 20-year qualifying period, evidence of which gave rise to the right to have it registered as a TVG).

“However, the exercise of that right is subject to the 'give and take' principle so that it is potentially misleading to think that there is a 'one size fits all' principle. This means that the public must use their recreational rights in a reasonable manner, having regard to the interests of the landowner (which may, or may not, be commercial) as recognised in the practical arrangements which developed to allow for coexisting use of the land in question during the qualifying period. The standard of reasonableness is determined by what was required of local inhabitants to allow the landowner to carry on its regular activities around which the local inhabitants were accustomed to mould their recreational activities during the qualifying period.”

The Supreme Court judges said the landowner had the legal right to continue to undertake activities of the same general quality and at the same general level as before, during the qualifying period. “If there was some fluctuation in the level of the landowner’s activity during the qualifying period, the standard of reasonableness applicable to the public’s use of their recreational rights should reflect what the local inhabitants had shown themselves willing to accept for a reasonably sustained period or periods of time.”

Lord Sales and Lord Burrows said that in practical terms, in the Port of Mistley case, this meant that the landowner had some leeway to intensify its use of the port, with a concomitant increase in HGV movements across the Land. “The landowner also has the right to undertake new and different activities provided they do not interfere with the rights of the public to use the land for lawful sports and pastimes.”

Registration as a TVG did not criminalise the continuation of the pre-existing activities of the landowner, the Supreme Court found.

The Victorian statutes treated certain acts as public nuisances and so, in accordance with the definition of the offence of public nuisance in R v Rimmington [2005] UKHL 63, TWL’s activities were not criminalised where those activities were “warranted by law”. Here, as TWL had the legal right after registration to carry on its existing commercial activities, those activities were “warranted by law”.

Similarly, TWL’s right to carry on with what it had been doing meant that it did so with “lawful authority” for the purposes of section 34 of the RTA 1988. As for the health and safety legislation, this had always applied irrespective of registration as a TVG. If TWL was lawfully required by the HSE to take some particular action, that would constitute lawful authority for doing so.

In light of the conclusion on Ground 2, it was not necessary or appropriate to decide Ground 1.

In relation to Ground 3, Lord Sales and Lord Burrows said the concept of use “as of right” involved use of land by the local inhabitants in a way which would suggest to a reasonable landowner that they believed that they were exercising a public right in doing so. The landowner’s concerns at their use do not affect the quality of that use. This ground of appeal was therefore also rejected.

This article is based largely on the Supreme Court’s press summary.