TW Logistics Ltd v Essex County Council & Anor [2021] UKSC 4

A concrete area in a working port was registered as a town or village green (TVG) following 20 years of recreational use by local inhabitants alongside commercial port activities. The Supreme Court held that registration did not criminalise the landowner's pre-existing commercial activities under Victorian statutes, as both uses could lawfully coexist under the 'give and take' principle.

Facts

TW Logistics Ltd (TWL) owned and operated Mistley port in Essex. A concrete area of approximately 200 square metres known as ‘the Land’ at Allens Quay was used for commercial port activities including the passage of heavy goods vehicles (HGVs), loading and unloading, and occasional temporary storage. Concurrently, local inhabitants used the Land for recreational purposes including walking, informal games, and crabbing at the water’s edge for over 20 years.

In August 2010, a local resident applied to Essex County Council to register the Land as a town or village green (TVG) under section 15(3) of the Commons Act 2006. Following a public inquiry, an Inspector found that a significant number of local inhabitants had indulged in lawful sports and pastimes on the Land as of right for the requisite 20-year period. The Council registered the Land as a TVG in July 2014.

Commercial and Recreational Co-existence

The trial judge found that throughout the qualifying period, commercial activity was rarely so intense as to discourage recreational use. There was ‘courteous conduct and give and take on both sides’ with pedestrians moving aside for vehicles. No injuries to members of the public had occurred from commercial activity on the Land.

Issues

The Supreme Court considered three principal issues:

1. Whether land should not be registered as a TVG if registration would criminalise the landowner’s continuing commercial activities (Ground 1);
2. Whether the Victorian statutes (Inclosure Act 1857 and Commons Act 1876) would criminalise TWL’s post-registration activities (Ground 2);
3. Whether the quality of user by local inhabitants was sufficient to qualify the Land for registration (Ground 3).

Judgment

The Give and Take Principle

Lords Sales and Burrows, delivering the unanimous judgment, explained that registration as a TVG confers on the public a general right to use the land for lawful sports and pastimes. However, this right is subject to the ‘give and take’ principle derived from the common law.

The position which has been mapped out in these authorities, therefore, is this. Registration of land as a TVG has the effect that the public acquire the general right to use it as such, which means the right to use it for any lawful sport or pastime… However, the exercise of that right is subject to the give and take principle so that it is potentially misleading to think that there is a ‘one size fits all’ principle.

The Court held that the landowner retains the legal right to continue activities of the same general quality and level as before registration.

Interpretation of the Victorian Statutes

The Court addressed whether the Victorian statutes would criminalise TWL’s continued commercial activities. They held that these statutes must be interpreted as part of a coherent statutory scheme with the Commons Act 2006.

The Victorian statutes should not be construed so as to make illegal that which, under the statutory registration scheme, is legal if another reasonable construction is possible.

The Court concluded that since TWL has the legal right to continue its pre-existing activities, those activities are ‘warranted by law’ and therefore not criminal under the Victorian statutes, which are fundamentally concerned with public nuisance. The same reasoning applied to section 34 of the Road Traffic Act 1988, where TWL would have ‘lawful authority’ for its activities.

Quality of User

The Court rejected the argument that local inhabitants were not asserting rights ‘as of right’ because they showed deference to commercial activities. This ‘deference argument’ had been definitively rejected in R (Lewis) v Redcar and Cleveland Borough Council (No 2).

Implications

This judgment significantly clarifies the law on TVG registration where land has dual use. It establishes that:

• Registration does not automatically subordinate the landowner’s pre-existing activities to public recreational rights;
• The ‘give and take’ principle ensures practical co-existence of competing uses;
• Victorian protective statutes do not criminalise lawful continuation of pre-registration activities;
• The modern TVG registration regime can apply to unconventional locations including working ports.

The decision balances the public interest in recreational access with the legitimate commercial interests of landowners, ensuring that registration does not have disproportionate consequences for landowners who have conducted established activities alongside public recreational use.

Verdict: Appeal dismissed. The registration of the Land as a town or village green was upheld. The Supreme Court held that TWL’s pre-existing commercial activities were not criminalised by registration under the Victorian statutes or other legislation, and that such activities could lawfully continue under the ‘give and take’ principle.

Source: TW Logistics Ltd v Essex County Council & Anor [2021] UKSC 4