T W Logistics Ltd v Essex County Council and another [2021] UKSC 4
Citation:T W Logistics Ltd v Essex County Council and another [2021] UKSC 4.
Subjects invoked: 44. 'Heritable Property'.78. 'Property Register'.102. 'Culture & Leisure'.
Rule of thumb:Can an area on private land which has been used for recreation become a registered village green? Yes, as long as it meets the technical requirements for length of time it has been used etc then it can.
Background facts:
This case invoked 4 different law subjects – heritable property, property registration, planning and culture & leisure. The Court in this case affirmed that under the ‘give and take’ principle even areas of land which are concrete and have traffic going over them can still be registered as ‘village greens’, provided that people have been using the land recreationally for a requisite period of time. The Court affirmed that landowners in possession of these areas have to be flexible and create rules which allow the land to function safely as a ‘village green’. This is an important case which has opened up the scope of potential ‘village green’ applications.
The facts of this case centred around Allen’s Quay Port, located in Mistley, Essex. This port has been there for centuries. Within this port there was a general square which local people used for a wide variety of recreational purposes – people would go walks there, joggers would pass through, dog-walkers would pass, and people would also meet there in fairly large groups for recreation. This went on for many years. However, this area grew in popularity and this led to people becoming injured, with indeed some people even falling into the water at the port. The port where local people would congregate was privately owned by TW Logistics. Upon hearing of the accidents, as well as a subsequent complaint from the Health and Safety Executive, TW Logistics erected a large metal fence and stopped people from being able to use this port like they did before. Many of the Essex locals complained to the Council about this and TW Logistics were asked to take the fence down. TW Logistics refused. Ian Tucker applied to Essex County Council to have the land registered as a ‘Town Village Green’, and the Essex Council accepted this registration. TW Logistics applied to the Court to have this registration revoked. TW Logistics and the Essex locals therefore had to have the matter resolved in Court.
Ian Tucker and the Council argued that under the heritable property right of prescription, as this land had been used for so long without interruption, it became a heritable property right of citizens to be able to use it. It was argued that this land became like a part of the community, like public parks or squares etc, which people had a legal right to congregate in. It was argued that accepting this property registration at the Essex planning department was just acknowledging this principle.TW Logistics argued that the right of prescription did not accrue if people were actually undertaking a criminal activity on the land. TW Logistics submitted 2 statutes from Victorian times, the Inclosure Act 1857, and the Commons Act 1876, which it was both interpreted that citizens interfering with a port was a criminal offence. They also submitted an interpretation of the Road Traffic Act 1988 submitting that it is a criminal offence to drive on a ‘Village Green’ like the one that had been registered.
Judgment:
The Court upheld the arguments of Ian Tucker and the Council. They did not accept that the arguments made about local people committing a criminal offence on the land as a result of the Victorian statutes from the 1800’s. The Court explained that the purpose of these Victorian statutes was to make it a crime to commit nuisance behaviour which actually interfered with the commercial activity in the port, and these citizens were fundamentally not doing this. The Court acknowledged there was an issue with the 1988 Act. They held that the 1988 Act did not make it a crime to drive on the village green area of the port like it would normally be – they stated that commercial people in the port could drive on these ‘village green’ areas provided there were no people there, and that only driving through large groups of people on these areas rather than around, or driving recklessly on them, would be a crime. Most importantly, the Court repeatedly affirmed the principle of ‘give and take’ when it comes to areas of private land where local people have congregated for recreation for many years. ‘Give and take’ was the principle emphasised and repeated throughout the Judgement. The Court affirmed that both the port and local people had to work together to create a system whereby people could continue to use the port, but also ensure that there would be no accidents or interference with commercial activities there. TW Logistics lost the case, the land was registered as a ‘village green’, and citizens were allowed to use the ground for recreation, albeit it was affirmed by the Court that there would be a new system of ‘give and take’ rules to create a system which accommodated both parties.
Ratio-decidendi:
‘1. This case raised some important issues about the law relating to the registration of a town or village green (“TVG”) under the Commons Act 2006. The use of the phrase “town or village green”, particularly the word “green”, conjures up an image of the archetypal village green with its area of grass where local inhabitants can walk and play. Hence the initial surprise on reading the facts of this case where the TVG in issue, as registered by the first defendant and respondent, Essex County Council (“the Council”), is an area of concrete of some 200 square metres (which we shall refer to as “the Land”) on, or close to, the water’s edge in a working port and across which port vehicles, including heavy goods vehicles (“HGVs”), are driven. It is clear, however, that the modern statutory concept of a TVG is much wider than the traditional village green….’
’74. As we have seen, the rights of the public in respect of a TVG are qualified by the principle of “give and take”. This principle has assumed greater importance in relation to modern TVGs created by registration as the mechanism by which the rights of the public and the rights of a landowner can be found to coexist and to operate alongside each other in relation to land which does not have the quality of a traditional TVG. (2/2) That in turn has enabled the courts to give wider effect to the modern TVG legislation for the benefit of the public (as explained in particular by Lord Brown and Lord Kerr in Lewis), in accordance with the object of that legislation. If it were not possible to say that a landowner’s pre-existing use of his land could continue after registration of it as a TVG, the purpose of the modern legislation would be undermined and there would be a risk that that legislation would be applied in a more restricted way’. Lord Sales and Lord Burrows
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.