The Court of Appeal allows a privately owned commercial port to be registered as a Town and Village Green

The law surrounding Town and Village Greens (“TVG”) is complex and can have a great impact on the value of commercial land. Registration of land as a TVG is likely to delay or prevent development even though the land has been used for commercial purposes for a long time.

Recently, the Court of Appeal ruled in TW Logistics Ltd v Essex County Council & Another[1] that an area of land forming part of the Port of Mistley in Essex should remain registered as a TVG despite the fact that it is a privately owned commercial port. This case was an important examination of the legal effect of registration of a TVG and its effect upon landowners.

The Law

A Town or a Village Green is defined in the Commons Act 2006 as land on which “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.”[2]

This is a very wide definition, which in the past has resulted in rocks, car parks, golf courses, school playgrounds, a quarry and scrubland being registered as TVGs. Despite this, Parliament has not changed the definition.

If the land is successfully registered as a TVG, it becomes protected by the Inclosure Act 1857 and the Commons Act 1876 (the so-called Victorian Acts) which effectively make it a criminal offence to develop the registered land for commercial purposes.

The Case

The case related to a port in Mistley, a small town in Essex, which has existed for several centuries and is currently owned in part and operated by TW Logistics Ltd. It is a private port and trade passes through it by heavy goods vehicles and vessels on a regular basis. The land that is registered as a TVG is part of an area of the port known as Thorn Quay or Allen’s Quay and includes a stretch of the water frontage.

Following an inquiry by an inspector appointed by Essex County Council, it was found that the edge of the quay and the quay itself had been used as of right for sports and various pastimes by a significant number of local people. This means that the land had been used for such activities without force, secrecy or permission. Concurrently, there had been port-related commercial activities, including passage of commercial vehicles, loading and unloading of them and temporary storage of materials.

The inspector found that both types of activities had co-existed for many years and local people avoided a passing lorry or forklift truck without causing any problems to the commercial activities. The inspector was aware of the differences between the quay and the traditional perception of a village green but compared it to a town or a village square and the application to register the land as a TVG was subsequently granted.

The Claim

TW Logistics Ltd made a claim to remove the quay from the register of TVG but the High Court dismissed the claim. TW Logistics Ltd appealed, claiming that:

  • The effect of registration would be to criminalise the landowner’s continuing use of the TVG;
  • The two uses are not concurrent but are sequential.

The Court of Appeal’s judgement

The Court of Appeal dismissed the appeal on the following grounds.

​1. Continuing use after registration as a TVG

The Court held that the High Court judge had correctly concluded that the two uses of the land were compatible and could continue without interference. Lord Justice Lewison stated that this was a question of fact. He considered that the principle of “give and take” enabled the landowner to continue to use the land in the way he did before registration of the TVG, where that use is compatible with recreational use.

​2. Is potential criminalisation a bar to registration as a TVG?

The Court held that in the absence of some special and conflicting statutory provision, once the criteria under the Commons Act 2006 has been established, there is nothing to prevent registration of the land as a TVG. The Victorian statutes are not such a provision. The Court added that it cannot be the case that the risk of prosecution under generally applicable legislation, however remote, can of itself be a bar to registration of a TVG.

​3. Would continuing use be a criminal offence?

Lord Justice Lewison said 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”. Whether an offence may be committed in the future is a matter of pure speculation.

​4. Implied permission

The Court held that it was a factual evaluation for the High Court judge to make and dismissed this ground on the basis that it saw no legal error, which underlies his evaluation.

The Court agreed with TW Logistics Ltd that it may be right that registration of the TVG would prevent it from significantly expanding its operations but said that that is an inevitable consequence of registration.

Things to consider

Registration as a TVG is likely to prevent development, which would deprive the land of much of its value. Under the Commons Act 2006, anyone can apply to register land as a TVG but there are steps that land owners can take to protect their interests and prevent an application from being granted. These include:

  1. Restricting access to the public by erecting a fence;
  2. Putting signs stating that access to the public is not permitted, or if there is a public pathway through the property, access is only with the owner’s permission and restricted only to the public pathway.