T W Logistics Ltd v Essex County Council and another

The Supreme Court dismissed the appeal. The court held that registration of land as a town or village green under section 15 of the Commons Act 2006 does not, of itself, criminalise continuation of a landowner’s pre-existing commercial activities where those activities can lawfully co-exist with the public’s recreational rights. The decision applies the established principle of "give and take" (derived from the authorities on registration and prescription) to define the scope of the public right after registration, and it construes Victorian criminal provisions (notably section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876) as concerned to protect against acts amounting to public nuisance and therefore not intended to render unlawful activity that is "warranted by law".

The court accepted the factual findings below that the recreational use by local inhabitants was "as of right" for the qualifying 20-year period and that recreational and commercial uses had sensibly and sustainably co-existed. It therefore upheld the registration and rejected submissions that the Victorian statutes, the Road Traffic Act 1988, or health and safety legislation made continued commercial use criminal after registration.

Background and procedural history. The Land at Allen’s Quay in Mistley was registered by Essex County Council as a town or village green in 2014 following an application by a local resident, relying on section 15(3) of the Commons Act 2006. TW Logistics Ltd (TWL), the port owner and operator, sought rectification of the register under section 14 of the Commons Registration Act 1965 and a declaration that the Land was not a town or village green. Barling J dismissed TWL’s claim ([2017] EWHC 185 (Ch)); the Court of Appeal dismissed TWL’s appeal ([2018] EWCA Civ 2172). TWL appealed to the Supreme Court.

Parties and facts. TWL owns and operates the private port at Mistley. The Land is a hard‑surfaced 200m2 area at the quay edge used by local inhabitants mainly for walking and incidental pastimes and, concurrently, at times for port activities including movement and occasional temporary storage by HGVs and forklifts. In 2008 TWL erected a fence along the quay edge for safety reasons. An inspector found the qualifying 20‑year "as of right" recreational use and recommended registration; the registration was confirmed by the Council.

Relief sought and issues for decision. TWL sought removal of the registration and a declaration that the Land was not a town or village green. The principal issues before the Supreme Court were: (i) whether registration would have the effect of criminalising TWL’s continuation of pre‑existing commercial activities (with primary focus on section 12 Inclosure Act 1857 and section 29 Commons Act 1876); (ii) the proper construction of those Victorian statutes and other statutes pleaded (section 34 Road Traffic Act 1988; section 3(1) Health and Safety at Work Act 1974 and regulation 17(2) Workplace (Health, Safety and Welfare) Regulations 1992); and (iii) whether the user by local inhabitants had the necessary quality of "as of right".

Reasoning and conclusion. The court reviewed the post‑registration rights of the public and the landowner, reaffirming that registration confers statutory recreational rights but that those rights are subject to the "give and take" principle developed in the authorities (including Trap Grounds and Lewis). The landowner retains the right to continue pre‑registration uses so long as they do not unduly interfere with the public’s recreational rights as those rights operated in practice during the qualifying period. Interpreting the Victorian statutes in the light of that scheme and the common law offence of public nuisance, the court concluded those statutes were aimed at preventing acts amounting to public nuisance and should be read so they do not criminalise activity that is "warranted by law"—in particular, continuation of lawful, pre‑existing uses. The court therefore dismissed the appeal, upholding the factual findings of co‑existence and the registration.

The appeal is dismissed. The Supreme Court held that registration under section 15 of the Commons Act 2006 confers public recreational rights subject to the principle of "give and take" so that a landowner may continue pre‑registration activities of the same general quality and level where they lawfully co‑exist with recreational use. Interpreting section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 in light of the statutory registration scheme and the law of public nuisance, those Victorian provisions do not criminalise continuation of such pre‑existing lawful activities.

Application to register made August 2010; Council registered the Land July 2014 after an inspector's report (October 2013). TW Logistics sought rectification and a declaration 28 November 2014. Barling J dismissed the claim: [2017] EWHC 185 (Ch); Court of Appeal dismissed the appeal: [2018] EWCA Civ 2172; appeal to the Supreme Court dismissed: [2021] UKSC 4.