Court of Appeal upholds decision to register part of port as village green

The Court of Appeal has upheld Essex County Council’s decision to register land that is part of the Port of Mistley as a town or village green (TVG).

In February 2017 Mr Justice Barling in the High Court rejected TW Logistics’ call for the TVG register to be rectified by the removal of the land. The company appealed.

In TW Logistics Ltd v Essex County Council & Anor [2018] EWCA Civ 2172 the appellant accepted that there had been co-existence of both recreational and commercial activities on the TVG throughout the 20-year period. However, TW Logistics argued that that was only the beginning of the inquiry.

It said registration as a TVG should not be confirmed if any of the following applied:

i) the effect of registration would be to criminalise the landowner's continuing use of the TVG for the same commercial purposes as took place throughout the 20-year period, and for that reason the recreational use did not have the necessary quality to support the registration;

ii) permission for recreational use could be implied from the interaction of the two uses; or

iii) the two uses were not concurrent but were sequential.

Counsel for Essex, supported by counsel for the applicant for registration, in turn argued that:

i) Potential criminalisation was not of itself a bar to registration of a TVG; and

ii) On the facts found by the judge there was no implied permission or sequential use.

Lord Justice Lewison, with whom Lord Justice Lindblom and Lord Justice David Richards agreed, dismissed the appeal.

Lord Justice Lewison said that whether pre-existing use and recreational use were compatible was essentially a question of fact. Noting that Mr Justice Barling had found that the two uses were compatible, he said: “An appeal court should not interfere with that careful evaluation.”

On the issue of continuing use being a criminal offence, Lord Justice Lewison said: “In my judgment Lewis [R(Lewis) v Redcar and Cleveland BC [2010] UKSC 11] establishes that where a pre-existing use is compatible with recreational use that leads to registration of a TVG, the land owner has the legal right to continue that use after registration. In other words, the continuation of that use is ‘warranted by law’ and does not amount to the commission of a public nuisance.”

Lord Justice Lewison also rejected the argument that there had been implied permission.

Lord Justice Lindblom added: “There is no reason in principle to think that, upon registration, the landowner's hitherto lawful activities on his land in the qualifying period should now expose him to the risk of criminal liability and sanction. That, in my view, is a misconception of the effect of the ‘Victorian statutes’ when a town or village green is registered.”

Birketts partner Richard Eaton, who advised the applicant, said: “Mistley is a working port and a key issue in the litigation has been the examination of how the law treats the co-existing interests of the landowner and the inhabitants. The decision sheds valuable light on the post registration rights of each, and how they can continue with sensible give and take and common sense."