Monday, 15 February 2021

Supreme Court Upholds Registration of an Area of Concrete Quayside as a Town & Village Green


“Mistley Quay will finally be set free after more than a decade of campaigning by residents” – Harwich and Manningtree Standard.

The Supreme Court has ruled that an area of concrete in a working commercial port was validly registered by a county council as a town and village green (TVG).

A TVG is an area of open space which, by immemorial custom, has been used by the inhabitants of a town, village, or parish, for the purposes of recreation and playing lawful games. There is no legal distinction between town greens and village greens; the names merely refer to the geographical location of the green.

Section 15 of the Commons Act 2006 allows anyone to apply to register a new TVG if they can show that a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.

A TVG does not have to conform to the bucolic image of an area of grass where local inhabitants can walk and play.

In this case the land is along the quayside in Mistley Port in Essex.

TWL owns and operates the port and has been using the land for the passage of port vehicles, including HGVs, and the temporary storage of cargo on the quayside.

At the same time, the land has also been used by locals 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.

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 under Section 15 to Essex County Council to register a large part of the quay as a TVG to protect the right of locals to enjoy the quay and its views of the River Stour.

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.

The Council registered the Land as a TVG.

TWL challenged the registration in the High Court, and lost; appealed to the Court of Appeal, and lost again; and then appealed to the Supreme Court, where it has now also lost.

There are 6 statutory provisions that apply.

  • S15 of the Commons Act 2006 – land may be registered as a TVG where a significant number of local inhabitants indulged as of right in lawful sports and pastimes on the land for at least 20 years.
  • S12 of the Inclosure Act 1857 and S29 of the Commons Act 1876 (the Victorian statutes) – it’s a criminal offence to interfere with a TVG in a number of different ways, including by interrupting local inhabitants from using it as place for exercise and recreation.
  • S34 of the Road Traffic Act (RTA) 1988 – it’s an offence to drive a vehicle on a TVG without lawful authority.
  • Two health and safety provisions 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 first.

Following TVG registration, locals must exercise their rights over a TVG in a fair and reasonable way, to respect the concurrent reasonable and established use by the landowner.

This has become known as the principle of “give and take”.

On registration, the public acquire the general right to use the land for any lawful sport or pastime, whether or not corresponding to the recreational uses of the preceding 20 years that gave rise to the TVG registration in the first place.

However, the landowner can continue to undertake activities of the same general quality and at the same general level as before.

To what extent can the landowner’s activities be varied or increased after registration of the land as a TVG?

The “give and take” principle referred to means there is no “one size fits all” approach. The Supreme Court ruling states:

“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.”

In practical terms this means the landowner has some leeway to intensify its use of the port, with an increase in Heavy Goods Vehicle movements across the land.

The landowner may also undertake new and different activities provided they do not interfere with the right of the public to use the land for lawful sports and pastimes.

TVG registration does not criminalise the landowner continuing its pre-existing activities on the land.

The Victorian statutes treat certain acts as public nuisances and so, in accordance with the established definition of the offence of public nuisance TWL’s activities are not criminalised where those activities are “warranted by law”. Here, as TWL has the legal right after registration to carry on its existing commercial activities, those activities are “warranted by law”.

Similarly, TWL’s right to carry on with what it has been doing means that it does so with “lawful authority” for the purposes of section 34 of the RTA 1988.

As for the health and safety legislation, this has always applied irrespective of registration as a TVG.

So, the appeal on Ground 2 was dismissed and it was not therefore necessary to consider Ground 1.

Ground 3Was the local inhabitants’ use of the land “as of right”?

The concept of use “as of right” involves use of land by locals 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, and therefore the appeal on Ground 3 was also dismissed.

The next stage will be the removal of the fence and in its place the locals want to discuss with TWL an environmentally and aesthetically acceptable alternative form of safety barrier along the quay edge, allowing traditional use of the village green.

The case is both a useful reminder of the law and practice concerning TVGs, and an illustration of the type of land that can qualify – it doesn’t have to be “green”.

When acquiring freehold or leasehold land it is generally a good idea to ensure that the optional enquiry on the TVG status of the land is asked when submitting a local search (currently in Form CON 29O Enquiry 22).

UPDATE 11 March 2021 - for more about this case here's a link to a podcast from No 5 Barristers' Chambers

Aerial photo of Mistley Quay by John Fielding via Flickr

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