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

The Court of Appeal dismissed the appeal against the registration of part of the working port of Mistley as a town or village green (TVG). The court applied section 15 of the Commons Act 2006 (and its predecessors) and the established tripartite test of use "nec vi, nec clam, nec precario" to uphold the finding that a significant number of local inhabitants had indulged as of right in lawful sports and pastimes for the requisite 20-year period. The court endorsed the factual finding of peaceful and sustained "co-existence" between recreational use and port-related commercial activity and held that such coexistence satisfies the quality of user required for registration.

The court rejected three principal legal attacks advanced by the landowner: (i) that registration would criminalise the landowner's continuing pre-existing commercial activities because of the Victorian statutes (Inclosure Act 1857 s.12 and Commons Act 1876 s.29) and Road Traffic Act 1988 s.34; (ii) that permissive use should be inferred from the landowner's conduct; and (iii) that the recreational and commercial uses were sequential (part-time) rather than concurrent. On each point the court concluded (a) potential criminalisation is not a bar to registration where the owner may lawfully continue pre-registration activities compatible with recreational rights; (b) there was no evidence of implied permission as distinct from toleration or acquiescence; and (c) the judge’s factual findings negatived the claim of sequential, permissive use.

Background and parties: The case concerned an appeal by TW Logistics Ltd (TWL) against the registration by Essex County Council (acting as registration authority) of part of Mistley port (known as Allen's Quay/Thorn Quay) as a town or village green. The registration followed an inspector's non-statutory inquiry which found long-standing public recreational use, principally informal walking and dog-walking, co-existing with port-related commercial activity. TWL operates the private port at Mistley and contended registration was inappropriate.

Procedural history: The registration was affirmed by the inspector and challenged by TWL in the High Court under the earlier statutory procedure (section 14 of the Commons Registration Act 1965). Barling J dismissed TWL's challenge ([2017] EWHC 185 (Ch), [2017] Ch. 310). TWL appealed to the Court of Appeal, which heard argument on 17–18 July 2018 and delivered judgment on 5 October 2018.

Nature of the application/relief sought: TWL sought to set aside the registration of the land as a TVG.

Issues before the Court:

• Whether the recreational use found by the inspector and accepted by Barling J had the requisite quality to support registration under section 15 of the Commons Act 2006;
• whether registration should be refused or set aside because it would criminalise continuation of the landowner's pre-registration commercial use due to the Victorian statutes (Inclosure Act 1857 s.12 and Commons Act 1876 s.29) or other statutory offences (Road Traffic Act 1988 s.34);
• whether the recreational use was permissive (implied licence) rather than use "as of right"; and
• whether the recreational use and commercial use were sequential rather than concurrent such that registration was inappropriate.

Court’s reasoning and conclusions: The Court of Appeal (Lewison LJ, Lindblom LJ and David Richards LJ) upheld Barling J’s careful factual findings of sensible, sustained co-existence and "give and take" between recreational users and port operations. The court applied authority from Oxfordshire County Council v Oxford City Council and R (Lewis) v Redcar and Cleveland Borough Council (No 2) to confirm that where pre-registration uses are compatible, the landowner may continue pre-registration activities after registration and such continuation will not, in itself, amount to a criminal offence under the Victorian statutes because it will be "warranted by law." The court rejected TWL’s argument that the mere potential for criminal liability prevents registration. On implied permission the court held there was no factual basis for inferring a licence rather than tolerated use, drawing on Beresford and subsequent authorities. On the sequential-use argument the court considered the judge’s factual findings and concluded the evidence did not support an inference of exclusion and part-time permission. The court therefore dismissed the appeal.

Wider comment: The court noted the sometimes counter‑intuitive breadth of modern TVG registration and that registration can include non‑traditional surfaces and urban or working areas, while emphasising the established legal principle that registration does not necessarily prohibit continuation of compatible pre-registration uses.

Appeal dismissed. The Court of Appeal upheld the High Court's conclusion that the land met the statutory test for registration as a town or village green. The court held that factual findings of peaceful "co-existence" between recreational and commercial activities support registration; potential criminalisation by Victorian statutes is not a bar where pre-registration uses are compatible and may lawfully continue; there was no sufficient evidence of implied permission; and the uses were not shown to be merely sequential so as to prevent registration.

Appeal to the Court of Appeal from the High Court of Justice, Chancery Division (Barling J), HC-2014-001550. The High Court judgment upholding the registration is reported at [2017] EWHC 185 (Ch), [2017] Ch. 310. This judgment is [2018] EWCA Civ 2172 on appeal to the Court of Appeal (Civ Div).