For more than twenty years, people walked and played beside the water at Mistley while lorries crossed the same concrete quay. The port owner objected when the land was registered as a town or village green. If these two uses had coexisted before registration, could criminal legislation protecting greens now make its ordinary operations unlawful?
The land and the registration
TW Logistics Ltd (“TWL”) owns and operates Mistley port, a privately owned port on the River Stour which is not subject to a statutory regime governing its use as a port. The land is an area of concrete of some 200 square metres at Allen’s Quay. Port vehicles, including heavy goods vehicles, cross it between other parts of the port. In August 2010 Ian Tucker applied to Essex County Council to register it as a town or village green under section 15(3) of the Commons Act 2006. He relied on recreational use by local inhabitants as of right for the twenty years ending on 17 September 2008, when TWL erected a fence along the waterfront after health and safety concerns.
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An inspector heard extensive evidence and found that the statutory criteria were met for this land. The main recreation was walking, with or without dogs, not on a fixed route, together with standing and talking and, from time to time, informal games and crabbing. Throughout the same period TWL’s commercial use continued, including vehicle movements and occasional loading, unloading and temporary storage. The Council registered the land in July 2014. TWL’s claim to remove the registration failed before Barling J and the Court of Appeal.
Barling J found that the two uses had coexisted. Commercial activity was often light, especially at weekends and in the evenings, and was rarely intense enough to discourage recreation. Pedestrians moved aside for lorries. There was courteous give and take, no exclusion of recreation, no adverse effect on the commercial activities, and no evidence of injury to a member of the public from those activities.
What registration does to the parties’ rights
Lord Sales and Lord Burrows explained that registration gives local inhabitants a right to use the land for lawful sports and pastimes. That right goes beyond the particular activities proved during the qualifying period, but it is qualified by give and take. The inhabitants must exercise it reasonably, taking account of the landowner’s established use.
The landowner keeps the rights deriving from its title, as limited by the public’s statutory rights. It may continue activities of the same general quality and general level as before. Where its activity fluctuated, the public’s standard of reasonableness reflects what inhabitants accepted for a reasonably sustained period, so in this case TWL has some leeway to intensify port use and vehicle movements. It may also undertake new activities if they do not interfere with the public’s recreational rights. Disputes about those relative rights would be resolved in the civil courts.
Continuation of the port activities is not a crime
TWL’s principal argument was that section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 would criminalise continuation of the same commercial activities after registration, so that registration should not have been allowed. The Court held that those provisions and the modern registration legislation form a coherent scheme about town and village greens. Read against the common-law offence of public nuisance, the Victorian provisions protect the public’s recreational use; they do not enlarge that use or criminalise what the landowner remains legally entitled to do.
Because TWL may lawfully continue its pre-existing activities, those activities are not a public nuisance and are not offences under the Victorian statutes. The use and enjoyment protected by those statutes is the recreational use compatible with the landowner’s continuing pre-existing rights. Simply carrying on as before does not interrupt that use. The Court rejected the suggestion that this reading is too uncertain for the criminal law: the proprietary right is ascertainable by evidence, and the burden of proving that the landowner was not entitled to act as it did would rest on the prosecution.
Section 34 of the Road Traffic Act 1988 did not produce a different result. Driving by TWL, and by others whom TWL is entitled to authorise, is with lawful authority. Health and safety duties had applied throughout, whether or not the land was a green, and registration does not change them. What is reasonably practicable is read in the light of TWL’s right to continue its commercial activities. Action lawfully required to protect workers or the public would itself be done with lawful authority.
The Court therefore held that registration had not criminalised TWL’s activities. It was unnecessary, and inappropriate, to decide the further question whether land should be refused registration if registration would criminalise the landowner’s continuing use. The Court expressly declined to decide that question, and said that its silence should not be treated as endorsing the lower courts’ rejection of TWL’s argument on it.
The quality of the inhabitants’ use
TWL also argued that the inhabitants’ use was not “as of right”. It said that its own activities were inconsistent with any right being asserted, and that it could not be taken to have acquiesced in a use which, on registration, would criminalise its business. The Court rejected both points. Use as of right is use which would suggest to a reasonable landowner that the inhabitants believed they were exercising a public right, without force, stealth or permission. A landowner’s concern about the consequences of registration does not change the quality of the inhabitants’ use as that landowner would perceive it. Acquiescence means that the landowner has seen the use over a long period and has not disabused or stopped the users. Any argument that moving aside for vehicles showed that no right was being asserted was the deference argument already rejected by the Supreme Court in earlier authority. The inspector and Barling J had found the necessary quality of use on the facts, and there was no basis for interfering with that finding.
Verdict: The Supreme Court unanimously dismissed the port operator’s appeal. The registration stood and the operator could continue the established commercial use described in the judgment. The Court left open whether registration should be refused in a different case where it would actually criminalise an existing use.
Source: T W Logistics Ltd v Essex County Council and another [2021] UKSC 4
