Quay is Town & Village Green
For many years inhabitants of an Essex town have been free to roam on a nearby quayside for general recreation: they meet each other, chat and walk their dogs.
At the same time, this concrete area of land operates as a working commercial port.
The owners used it for the passage of port vehicles, including heavy goods vehicles and the temporary storage of cargo.
But there came a time in 2008 when concerns were expressed about people falling into the water. The Health and Safety Executive (HSE) threatened enforcement action.
Lo and behold, the owners erected a 1.8 metre high chain linked metal fence along the quayside.
Thus, it came about that an aggrieved local inhabitant applied to Essex County Council to register a large part of the quay as a town and village green (TVG) pursuant to section 15(3) of the Commons Act 2006.
After a non-statutory inquiry, an Inspector – after excluding several other parts of the quay from the application – 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.
And it came to pass that the Council registered the land as a TVG.
The owners challenged the registration in the High Court but all grounds were dismissed. The Court of Appeal upheld that decision.
The Supreme Court has now considered the case: TW Logistics Ltd (Appellant) v Essex County Council and another (Respondents) [2021] UKSC 4 Lady Black, Lady Arden, Lord Sales, Lord Burrows, Lord Stephens.
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 made 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 made it an offence to drive a vehicle on a TVG without lawful authority.
Two health and safety provisions required an employer to protect members of the public from risks to their health.
Lord Sales and Lord Burrows gave the sole but unanimously agreed judgment dismissing the appeal.
The landowners second ground of appeal was that, on the facts of this case, its commercial activities would be criminalised after registration.
But the Court considered that local 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”.
By registration, the public acquired the general right to use the land for any lawful sport or pastime, whether or not corresponding to the particular recreational uses to which it had been put in the preceding 20 years.
However, the landowner could continue to undertake activities of the same general quality and at the same general level as before.
The landowner could also undertake new and different activities provided that these did not interfere with the right of the public to use the land for lawful sports and pastimes.
The landowner’s activities were not criminalised where those activities were warranted by law. Here, as the owners had the legal right after registration to carry on their existing commercial activities, those activities were warranted by law.
Similarly, that meant it did so with lawful authority for the purposes of section 34 of the RTA 1988.
If the owners were lawfully required by the HSE to take some particular action, that would constitute lawful authority for doing so. It followed that ground 2 of the appeal was dismissed.
It was not necessary or appropriate, therefore, to decide ground 1 that land should not be registered as a TVG if that would criminalise the landowner’s existing commercial activities.
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 did not affect the quality of that use. Ground 3 of the appeal, therefore, that the use of the land by local inhabitants was not “as of right” was also rejected.