Supreme Court to hear dispute over registration of part of port as town or village green

The Supreme Court has agreed to hear a port operator’s appeal in a dispute over Essex County Council’s decision to register part of a port as a town or village green (TVG), it has emerged.

The latest list of permission decisions made by the court reveals that a panel comprising Lady Hale, Lady Black and Lord Sales gave permission to appeal to TW Logistics in July.

The land at the Port of Mistley was registered in 2015, the landowner having previously attempted to fence off the site.

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’s appeal was subsequently dismissed by the Court of Appeal in TW Logistics Ltd v Essex County Council & Anor [2018] EWCA Civ 2172.

The appellant had accepted that there had been co-existence of both recreational and commercial activities on the TVG throughout the 20-year period. However, it argued before the Court of Appeal 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.”