In previous bulletins we reported on two Supreme Court decisions (Barkas in 2014 and Newhaven Port and Properties Limited in 2015) that provided some comfort for landowners and developers as regards town and village green (TVG) registration. Now we have a third TVG decision from the Supreme Court that has brought less welcome news for them.
As a reminder, under the Commons Act 2006, proving that land has been used by a significant number of local inhabitants for lawful sports and pastimes "as of right", rather than “by right”, for at least 20 years is a prerequisite to TVG registration.
On 12 February 2021 the Supreme Court handed down judgment in TW Logistics Ltd-v-Essex County Council [2021] UKSC 4, a case not unlike Newhaven in that it concerned a working port.
The port of Mistley in Essex is owned and operated by TW Logistics Ltd (TW). In September 2008, following the threat of enforcement from The Health and Safety Executive in respect of the risk of people falling off a quay into the water, TW erected a 1.8 metre high chain link fence along the waterfront.
In August 2010, a local resident applied to Essex County Council (ECC) to register an area of about 200 square metres of that quay (the Quay) as a TVG. In October 2013 ECC’s inspector found that:
- The Quay had been used “as of right“ by local inhabitants for lawful sports and pastimes (primarily dog walking, but including informal games, feeding swans and crabbing at the water’s edge) for the 20 years up to TW’s erection of the fence.
- During that 20 year period, the commercial activities of the port and the recreational activities of the local inhabitants co-existed without problems and there was no evidence that either activity displaced the other.
In July 2014 ECC registered the Quay as a TVG and TW was subsequently unsuccessful in proceedings to rectify the TVG register, culminating in an appeal to the Supreme Court where the key issues were:
- Land should not be registered as a TVG if that resulted in the landowner’s pre-existing commercial activities being criminalised under the Inclosure Act 1857 and the Commons Act 1876 (the Victorian Acts); both of which make it an offence to interfere with public rights over TVG. The Supreme Court held that the public rights associated with TVG registration were subject to a “give and take” principle, so the landowner could continue with its pre-existing uses (provided they did not interfere with those public rights) and the public could continue exercising those rights reasonably and with respect for the landowner’s concurrent use. The effect of the Victorian Acts was not to criminalise TW’s activities during the 20 year TVG qualifying period.
- The periods of time when local inhabitants were excluded from the Quay due to TW’s commercial activities indicated they were permitted to use it when not in commercial use, meaning their use was “by right” rather than “as of right”. The Supreme Court rejected this argument and held that recreational use of land for only certain periods of time was still sufficient to establish use “as of right”. There was evidence that TW’s commercial activities rarely discouraged locals from visiting the Quay for recreation.
So, how might the TW Logistics decision affect purchasers and developers? Enquiries should be made as to how the land concerned was acquired and subsequently managed. It may be possible to establish that (as in the Newhaven case) its use has been subject to statutory provisions such as byelaws, which would render any use to be "by right" and prevent TVG registration.
As this is a complex and evolving area of law it is important to address TVG risks early in a transaction.
For more information please speak with Emma Salvatore or Michael Donnellan.
