Has the ruling of T W Logistics Ltd -v- Essex County Council and Ian Tucker by the Supreme Court left uncertainties?
The Supreme Court handed down their ruling on 21st February 2021, which has wide implications for the status of privately owned land classified as a town or village green. The term ‘village green’ conjures up a beautiful area where locals walk their dogs and its children play, however this case was unusual in that it concerned an area of land in a working commercial port.
The land, lying along the quayside in Mistley port in Essex, was owned and operated by the Appellant (T W Logistics). It had been using the land for port vehicles, including heavy goods vehicles, and the temporary storage of cargo. However, the locals also used the land to walk dogs, and for general recreation – the two competing sets of activities co-existing for many years.
In September 2008, following a threat by the Health & Safety Executive and concerns about people falling into the water, the Appellant erected a 1.8-metre-high metal fence along the quayside. Two years’ later, Ian Tucker (the Respondent) on 18th August 2010, applied to Essex County Council to register a large portion of the quay as a town or village green (TVG) and in 2013, the Council appointed an Inspector. Whilst excluding several parts of the quay from the application, they found that the land satisfied the statutory criteria that: “it had been used ‘as of right’ for lawful sports and pastimes by significant numbers of local inhabitants for the preceding 20 years.” Essex council duly registered the land as a TVG.
The Appellant challenged the registration in the High Court on the grounds that registration could criminalise its commercial activities and that the recreational use of the land was not “as of right”, however all grounds of appeal were dismissed, which was subsequently upheld by the Court of Appeal. There then followed a further appeal by the landowner to the Supreme Court against the registration of the land, but it was rejected in its entirety.
In Judgment, the Justices ruled that registration of the land did not criminalise the Appellant’s pre-existing commercial activities, noting that local people “have to exercise their rights over a TVG in a fair and reasonable way, so as to respect the concurrent reasonable and established use by the landowner. This has become known as the principle of ‘give and take’”. The landowner could therefore continue to use the land for its commercial enterprise, providing it did not interfere with the right of the public to use the land.
What the ruling means in practice
Its immediate impact demands the landowner remove or replace the metal fencing with an alternative allowing residents access to the quayside for the first time since 2008 when it was erected. And highlights that whilst implementing health and safety preventative measures, the landowner also needs to consider the type of land they are protecting. All businesses have a duty to consider and manage risks on their land, but must also take into consideration if it obstructs access to the use of the land. The court said the landowner should have considered:
- Opening dialogue with the locals about the type of safety and/or preventative measures that could have been taken
- Liaised with campaigners to remove the fencing for a suggested ‘environmentally and aesthetically acceptable form of safety barrier along the quay edge.’
The decision attempts to reconcile a landowner’s legitimate use of land with local inhabitants’ recreational rights. It also highlights the risks to landowners of registration which, arguably if successful, may significantly reduce the value of the land.
The decision also challenges the view of what amounts to a TVG. Traditionally, TVG’s are seen as chocolate-box style village greens. However, the land subject to this case was a 200sq m area of concrete in a working port, with HGV’s coming and going. When determining whether land is a TVG, it appears to be important to understand how the land is used, as opposed to what it looks like. This will particularly interest property developers in understanding the changing landscape of how TVG’s may be seen in light of brownfield sites they may have acquired. Although, amendments made to the law in England in 2013, and Wales in 2018, rule out many TVG applications.
It is important to note that the right to make a registration application for a TVG is suspended once a ‘trigger event’ has occurred in relation to the land. Trigger events include first publication of a planning permission application, where development or neighbourhood plans (or a draft of either) identify land for potential development, and the plan has been published or adopted. Although it is important to note, it is still open to residents and pressure groups to object to the adoption of development plans and neighbourhood plans through the planning process.
When can land be registered as a TVG?
TVG’s can be owned by private individuals and businesses or organisations as well as public bodies. Land can be registered as a TVG if local people have used it for sporting recreation and pastimes openly and without the permission of the landowner for at least 20 years.
But who has the right to enjoy, and what constitutes, lawful sports and pastimes?
It does not extend to wider society and is only exercisable by inhabitants of the locality in which the TVG is situated. However, identifying the relevant locality can be difficult in practice. Lawful sports and pastimes are not limited to those activities being enjoyed during the period of use immediately preceding registration. However, where this cannot be determined, it is left for the court to decide the lawfulness of an activity. Although the view of DEFRA is that where an activity is deemed to be a public nuisance under section 29 of the Commons Act 1876, it is unlikely to be considered lawful.
Any right can be exercised free of charge, meaning an owner cannot charge people for using the land in question, and even in cases where the owners ask a local for a donation for its use, they are under no obligation to pay it. This would also apply to a request for a contribution towards maintenance, including hosting an organised event such as a fete or sports match on the land.
Can a green be de-registered?
An owner of a TVG can apply to the Secretary of State under section 16 of the Commons Act 1876, for the land to be released from registration and if successful would result in the land no longer being granted the protection of a TVG. If the ‘release land’ is over 200sqm, an application must be made to register ‘replacement land’ as a TVG in its place. If the release land is smaller than 200sqm, a proposal for replacement land may be included, but there is no mandatory requirement to do so. Although the Secretary of State generally expects that land will be offered in exchange even when not mandated.
This case is a reminder to anyone owning land which is also being used by the public to make sure that its use is only with permission of the landowner. Otherwise, there may be serious consequences for how the land is used in the future. Recent case law confirms that if a landowner does not permit the use of the land by the public, erecting clearly visible signs can deal with the issue effectively and will usually be enough to prevent the use of others’ being ‘as of right’.