TW Logistics Ltd v Essex County Council & Anor (Rev 3)

Registration as a town or village green is not barred merely because the owner’s pre-existing commercial use might otherwise appear criminal under the Victorian statutes or generally applicable health and safety legislation. The statutory test under the Commons Act 2006 asks whether significant local use of land for lawful sports and pastimes, as of right, continued for at least 20 years. Once those requirements are met, no further incompatibility inquiry is required, absent a special conflicting statutory regime. The owner may continue pre-registration activities that are factually compatible with recreational use. Compatibility is a question of fact. Mere tolerance, inaction or coexistence does not imply permission; an implied licence requires an overt act.

TW Logistics Ltd challenged the registration of part of the working Port of Mistley as a town or village green. Following a non-statutory inquiry, the registration authority found that local inhabitants had used the land as of right for lawful sports and pastimes for at least 20 years, alongside port operations.

Proceedings were brought under section 14 of the Commons Registration Act 1965. Mr Justice Barling dismissed the challenge in a judgment reported at [2017] EWHC 185 (Ch). The appeal concerned whether continuing commercial activity would be criminalised after registration, whether recreational use was impliedly permissive, and whether commercial and recreational use was sequential rather than concurrent.

The Court of Appeal unanimously dismissed the appeal.

1. Effect of registration. Under section 15 of the Commons Act 2006, once significant local use of land for lawful sports and pastimes, as of right, for at least 20 years is established, there is no additional inquiry into whether registration would be incompatible with the owner’s continuing use. The only qualification is a special and conflicting statutory regime.
2. Coexistence and compatibility. The principle of give and take permits the landowner to continue pre-registration activities where they are compatible with recreational use. Recreational users must exercise their rights lawfully. Whether the two uses can coexist is essentially a question of fact. The judge’s careful finding that commercial and recreational use had coexisted peacefully was an evaluative conclusion with which the appellate court would not interfere.
3. Criminal liability. The Inclosure Act 1857, the Commons Act 1876 and section 34 of the Road Traffic Act 1988 had to be construed as part of the same statutory system as the modern registration scheme. Compatible continuation of pre-registration activities was warranted by law and did not constitute injury, interruption, occupation of the soil or a public nuisance. The statutory reference to enjoyment concerned the exercise and benefit of the recreational right, not pleasure. The risk of prosecution under generally applicable health and safety legislation was too speculative to bar registration.
4. Permission. An implied licence may arise from an overt act, such as unequivocal exclusion of the public. Mere inaction, toleration, acquiescence or ordinary deference to commercial activity is insufficient. Recreational use need not occur simultaneously with the owner’s use at every moment; temporary practical exclusion does not itself establish permission.

The registration therefore stood.

• Court of Appeal (Civil Division) — The appeal was dismissed unanimously on 5 October 2018.
• High Court of Justice, Chancery Division — Barling J dismissed the challenge to registration of the land as a town or village green: [2017] EWHC 185 (Ch).