The recent Supreme Court case of TW Logistics Limited v Essex County Council and another [2021] UK SC 4 represents a key decision in town and village green (TVG) registration case law. In this case, part of an operational port run by TW Logistics Limited (TWL) has been registered as a TVG despite TWL’s efforts to challenge the registration, taking it all the way to the Supreme Court. It highlights the real threat from 'dual use' scenarios and the need for pro-active management of village green risk.

The facts

The land registered in this case was distinct from the sort one might conjure up when thinking of a TVG. It is an area of hardstanding lying on the edge of the estuary of the River Stour falling between two operational areas inside a private port. It is a long way from the grassy square with a maypole in the centre of a village. Nonetheless the area had been lawfully used by members of the public for a period of 20 years ‘as of right’, with use typically consisting of walking, with and without dogs, on an undefined route and stopping to converse with other members of the public. Throughout the period of use the land was also utilised by TWL as part of its operations, including for the passage of commercial vehicles including HGVs, for loading and unloading and for temporary storage of materials.

Although it is not stated in the judgement, what most likely triggered the registration of this TVG was the erection of a fence along the waterfront about half a metre back from the estuary edge. This was put in place by TWL following notification by the Health and Safety Executive of concerns about people falling into the estuary.

The decision

TWL sought to challenge the registration of the TVG, and at every stage of the appeals process it was dismissed. The Supreme Court followed suit and dismissed the appeal again finding the TVG had been lawfully registered. The key question in the Supreme Court, and what TWL relied on to overturn the registration, was whether the registration of the land as a TVG would lead to TWL’s commercial activities being criminalised and whether, if that was the case, the registration would be unlawful.

Criminality under the Victorian Statutes

Two Victorian statutes which seek to protect the rights of the public where land is registered as a TVG (by imposing sanctions on landowners who act to unlawfully restrict those rights) were of concern to TWL. TWL considered their regular commercial activities to fall within the terms of these criminal offences and as such that criminality arising post-registration would render that registration unlawful.

At first instance, the High Court disagreed. The judgement considered TWL’s existing activities were unlikely to amount to a criminal offence as, for example occasional temporary storage of goods on the land would not amount to ‘occupation of the soil… made otherwise that with a view of the better enjoyment of the’ TVG (extract from the offence in section 29 of Commons Act 1876) as occupation indicates something more than temporary.

The Court of Appeal considered the case of R (Lewis) v Redcar and Cleveland Borough Council (No.2) [2010] UKSC 11. The decision in that case makes clear that a landowner of a TVG is entitled to continue activities carried out prior to registration after a TVG has been created so long as they do not unduly interfere with the public’s rights. This principle of ‘give and take’ has developed over a period of time and most recently gained traction in the case of Lewis where a TVG was registered over part of a golf course where the use of the public occurred concurrently and in a way which co-existed with use of the golf course by golfers.

Similar to Lewis, TWL’s commercial use of the land was considered to be compatible with the public’s use of it. For example, at no point had TWL prevented the public from entering the land. Where there were instances where commercial use was such that the public had to alter their use of the land, the public were willing to allow this and generally conduct between the parties was courteous. Further, the commercial use was rarely so intense as to discourage the public from using the land and the public felt safe when using the land. As such the continuing commercial use carried on in the same manner post-registration would be lawful and the registration of a TVG would not suddenly render that activity criminal, even when applying the Victorian statutes.

The registration of a TVG grants rights to the public to use land for lawful recreation and past times. This right is granted subject to the existing rights of the landowner, so provided the two are compatible there is nothing preventing land like in this case from being registered.

The Supreme Court agreed. They looked at the background of the Victorian statues which were to bolster the common law offence of public nuisance. As such the definition of public nuisance would be off assistance. That was set out in Archbold, Criminal Pleading, Evidence and Practice as ‘an act not warranted by law’. As TWL has the legal right in the period after the registration of the land as a TVG to carry on with its established commercial operations on the land, its activities are ‘warranted by law’.

Criminality under other statutes

TWL also sought to argue that the TVG would be incompatible with other criminal statutes under the Road Traffic Act 1988 (RTA 1988) and health and safety legislation. Both of these arguments also failed. Offences under the RTA 1988 state that where there is driving on a TVG ‘without lawful authority’ an offence will occur. However, in this case ‘lawful authority’ took place as TWL gave permission for the drivers to drive on the land. Further the health and safety legislation always applied and the registration as a TVG would not impact on the future application of the legislation given that TWL are already having to take ‘reasonable precautions’ to protect the public.

Other key points raised

TWL sought to argue that the criminal sanctions imposed in the Victorian statues precluded the registration of the TVG. However, the Court found that once the tripartite test for registration set out in section 15 of the Commons Act 2006 was met, there were nothing else preventing a registration being successful apart from if there is a statutory regime which contradicts with the use of land as a TVG. One such statutory regime was considered in New Haven where the statutory requirement for the continued operation of a port prevented a neighbouring beach from being registered as a TVG. TWL sought to rely on the same argument but because it is a private company operating a private port, this statutory regime did not apply and no such argument could be relied on.

What now?

Crucially it was because the commercial activities were able to take place alongside the public’s lawful use, so far as the public’s rights over the land conferred by the TVG were granted subject to the commercial use, that the registration was valid. Therefore, where use by the public is compatible with commercial, or other, use of land, that land may be at risk of being the subject of a TVG registration.

Although the Supreme Court made clear that a registration in cases like this would not prevent the commercial use changing or intensifying, any change would have to be within the confines of what the public would reasonably tolerate as not interfering with their rights of lawful enjoyment and past times upon which they secured the registration of the land as a TVG. This creates considerable uncertainty.

If you operate a business on land over which the public also have access you should also consider the TVG registration risk. There are steps which can be taken to reduce this risk but this must be done carefully or you may trigger the very thing you are trying to avoid.