155: A little bit of give and take – Court of Appeal allows registration of a commercial port as common land

The recent Court of Appeal decision in TW Logistics Ltd v Essex Country Council and Another [2018] Civ 2127 is a helpful reminder about the impact of common land registration on private landowners. By acquiescing to public ‘enjoyment’ of part of their property for many years, the owners of the Port of Mistley in Essex are now restricted in how they use or develop the land on the quayside in the future.

Background

The village of Mistley on the River Stour in Essex has been the home to a commercial port since the early 1700s. The current Port of Mistley is operated by TW Logistics Limited (TWL). It handles hundreds of thousands of tons of cargo each year and includes warehouse storage, access roads and areas of hardstanding. It enjoys easy access to and from the village High Street and many parts of the quayside have been open to dog walkers, Sunday strollers and the general public for years.

In 2008, the Health and Safety Executive contacted TWL as they were concerned about the risk of employees and other people falling in to the river. The HSE threatened enforcement action and, in response, TWL erected a 1.8 metre high fence along the quayside. This sparked outrage amongst some villagers and action groups protested the restriction of free access to and from the river. In 2010, Essex County Council received an application under section 15(3) of the Commons Act 2006 to have part of the port estate registered as a town and village green.

Power to the people

The Commons Act 2006 provides that any person may apply to register land as a town or village green where ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years’. Once registered by the local authority, the land is subject to certain restrictions especially as to use and development where it might interfere with the enjoyment of the land by the public.

Following an inquiry, in July 2014, Essex County Council informed TWL that they had decided to register part of the quay as a town and village green. TWL then issued a judicial review challenging the lawfulness of the decision and separately made an application to the High Court to declare the land was not a town and village green and the register should be rectified. In the High Court, Mr Justice Barling held that TWL’s case that the public’s recreational use of the quay was incompatible with TWL’s commercial activity did not stand. He held that the evidence showed that there was ‘sensible and sustained co-existence between the two groups of users’.

Court of Appeal decision

TWL then appealed to the Court of Appeal claiming that by registering parts of the quay as common land, their operations would be criminalised – quoting two Victorian statues under which TWL could have been prosecuted. They also claimed that recreational use of the quay had been allowed only with TWL’s implied permission and not ‘as a right’.

In the leading judgment Lord Justice Lewison agreed with Mr Justice Barling that registration was compatible with TWL’s existing operations. The designation as a town and village green would not stop TWL continuing their existing activities provided that they did not interfere unduly with the recreational rights. Likewise recreational rights on the land would have to be exercised in a lawful way.

Lord Justice Lewison remarked:

‘The principle of “give and take” enables the landowner to continue to use his land in the way that he did before registration of the [town and village green], where that use is not incompatible with recreational use.’

Historically those walking along the quayside never interrupted TWL nor the commercial operation of the port and likewise HGVs and forklifts had always been mindful of walkers passing by.

The Court of Appeal also refused to accept that the mere fact TWL could face criminal prosecution if it caused a nuisance on the land should stop the registration of the town and village green in principle. It was the case that, as TWL had a lawful right to carry out its commercial activities, continuing to do so would not amount to a public nuisance (as referred to in the Victorian statutes).

Commentary

This Court of Appeal decision is a reminder to private landowners about the implications if they acquiesce to the public ‘enjoying’ any part of their property for a long period of time. TWL have not been prohibited from carrying on their business activities as before but they will be prohibited from future development of the land and from any significant increase in activity at the port.

In this instance installing signage warning that the port was private property was not enough, and the fact that TWL ‘tolerated’ the continued use by the public meant in the end that there was no need to prove express or even implied permission had been given. TWL never restricted public access to and from the quayside and this was sufficient to allow registration as a town and village green.

For now ‘a little bit of give and take’ might just sound like good neighbourly conduct but, if not properly policed, allowing recreational use of land to continue unchecked can easily lead to unintended consequences.