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In this post, Jessica Eaton, who is a trainee solicitor at CMS, comments on the unanimous decision handed down in February 2021 by the UK Supreme Court in the case of TW Logistics Ltd v Essex County Council and Anor [2021] UKSC 4.  

The case of TW Logistics Ltd v Essex County Council and Anor concerns the question of whether a piece of land owned by TWL forming part of the Port of Mistley in Essex (the “Land”) was properly registered as a Town or Village Green (“TVG”) in terms of the Commons Act 2006, s 12 (the “2006 Act”). The section provides that where “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years” a person may apply for registration. Satisfied that the terms of the provision were met, the Council registered the Land in 2014. TWL objected to the registration and raised proceedings for rectification of the register later that year. The primary basis of TWL’s challenge was that the Inclosure Act 1857, s 12 and the Commons Act 1876, s 29 (the “Victorian statutes”), as well as the Road Traffic Act 1988 and the Health and Safety at Work Act 1974 including certain health and safety regulations, would have the effect of criminalising continued commercial activity on the Land once it was registered as a TVG. The argument was rejected by the High Court and the Court of Appeal. On 12 February 2021, the Supreme Court joined the lower courts and unanimously rejected TWL’s appeal.

Background

The Port of Mistley has been a working port for centuries and had been operated by TWL as such for many years. Following concerns raised by the Health and Safety Executive that employees and members of the public risked falling into the water, TWL fenced off the Land. This marked the end of the 20-year qualifying period under the 2006 Act. Until that point, the residents of Mistley had used the Land for various leisure activities including dog walking, crabbing, and generally socialising with neighbours and friends. Mr Tucker, a local resident who had lived and worked within view of the Land for many years, made an application to the Council for registration. A non-statutory public enquiry followed which concluded that the recreational and commercial activities had co-existed in the “spirit of give and take” for the qualifying period.  The recreational use had been “as of right” for the qualifying period and the Inspector recommended the Land be registered.

Legal challenge and issues

At first instance, TWL argued in the main that (i) the recreational use had not been “as of right” but rather had been rendered contentious as a result of the warning signs erected on the Land and/or the company’s conduct had rendered the use “permissive”, (ii) the recreational use was not of the requisite quality, and (iii) the recreational and commercial uses were incompatible and (iv) the continued commercial use post registration would amount to a criminal offence under various pieces of legislation designed to protect TVGs and would leave the landowner open to “significant risk of criminal liability on an uncertain and ill-defined basis.” Some technical arguments were also advanced about the application for registration having been made out of time and about the incompatibility of registration with the statutory regime under which the port operated. At the request of the parties, Barling J visited the Land and the surrounding area and made detailed consideration of the signage on which TWL relied. He found that the recreational use was not registered contentious by their presence. Relying heavily on the Inspector’s detailed report, he rejected the rest of TWL’s objections too and concluded that there was significant evidence that the recreational and commercial uses had happily co-existed for the required period with local people not infrequently getting out of the way of a passing forklift truck. He did not accept that TWL’s arguments about the potential adverse effects of the criminal law.

TWL appealed the decision primarily on the grounds that (i) the effect of the registration would be to criminalise the continued commercial activities and that (ii) as a result the recreational use did not have the necessary quality to support registration. The arguments were rejected and the Court of Appeal who essentially separated the question of registration from the question of any potential criminal liability on the part of the landowner, concluding that “once the three criteria have been established [a reference to the terms of the 2006 Act] there is no further impediment to registration of a TVG in the absence of some special and conflicting statutory provision” and that the statutory provisions on which TWL relied did not constitute such conflicting provisions. Further concluding that, it could not be the case that “the risk of prosecution under generally applicable legislation, however remote, can of itself be a bar to registration of a TVG. Whether an offence may be committed in the future is a matter of pure speculation.”

Judgment of the UK Supreme Court

TWL appealed to the Supreme Court on three grounds. The Court of Appeal had misinterpreted the Victorian statutes, and that on their proper construction the legislation did in fact criminalise TWL’s post-registration commercial activities (Ground 2). Land should not be registered if the effect would be to criminalise the landowner’s continuing commercial use for the same purposes as the land had been used prior to registration (Ground 1), and finally that the nature of the public’s use was not of sufficient quality to qualify for registration (Ground 3). The court considered that it was convenient to deal with Ground 2 first because (i) it was difficult to consider Ground 1 in the abstract and (ii) if the appellant failed on Ground 2 then it would not be necessary to consider the in-principle question raised by Ground 1.

Ground 2: The Court of Appeal had misinterpreted the Victorian statutes, and that on their proper construction the legislation did in fact criminalise TWL’s post-registration commercial activities

Counsel for TWL argued that the Victorian statutes which had as their aim the protection of TVGs, would have the effect of criminalising continued commercial activity of the kind that had been practiced prior to the registration. Following careful analysis of the relevant provisions, the court held that the legislation did not have the effect of criminalising TWL’s commercial activities because those activities were “warranted by law” and did not therefore constitute the nuisance the legislation had been designed to protect against. Put another way; “[the] underlying feature of the Victorian statues is reflected in the words “without lawful authority” in section 12 of the 1857 Act, which qualify the offence created in so far as it applies in relation to the activity of wilfully leading or driving any cattle or animal on the TVG.” The court applied the same reasoning to TWL’s arguments about potential criminalisation under the 1988 Act. As the relevant section of the legislation provides that an offence is committed when “without lawful authority” a person drives a mechanically propelled vehicle on public land – no offence is committed by TWL who possess the “legal right to carry on with what it has been doing.” The position as regards the health and safety legislation was different. TWL was bound to comply with health and safety law before and after registration – a duty that was unaffected by registration.

As such, the court rejected what the Court of Appeal had described as the “high risk” approach adopted by TWL’s counsel which essentially involved arguing that his client had committed and was continuing to commit a criminal offence. As the Supreme Court put it, it was a submission that; “in any other context would be regarded as being against TWL’s self-interest.” Had counsel for the appellant been successful, he would have argued for his client’s exposure to criminal liability “to no avail.”

Ground 1: Land should not be registered if the effect would be to criminalise the landowner’s continuing commercial use for the same purposes as the land had been used prior to registration

The court held that in light of its conclusions in respect of Ground 2, it was not necessary or appropriate to reach a conclusion on the in-principle question raised under Ground 1. In effect, as the answer to the question in Ground 2 had been that TWL was not committing a criminal offence in continuing their commercial business, there was “no point” in asking what effect criminalisation of commercial activities might have on the registration of land as a TVG in the abstract.

Ground 3: The nature of the public’s use was not of sufficient quality to qualify for registration

This ground of appeal, as developed by counsel for TWL, effectively had two threads. One, that the recreational use of the Land by the Mistley residents could not have been “as of right” when throughout the qualifying period TWL continued with commercial activities which were inconsistent with the development of a right of that nature. And two, TWL could not be taken to have acquiesced in the recreational use if the effect of the registration would have been to criminalise their own pre-existing activities. Unsurprisingly, the court held that so far as TWL’s arguments about the quality of use depended on the criminalisation submissions under Ground 2, they fell to be dismissed. Beyond that, however, the court found that the appellant’s understanding of the term “as of right” was not in line with authority and had been “based on a distortion of the concept”. Essentially, in the opinion of the court, whether the use was “as of right” was not concerned with the landowner’s views around whether the use would be criminalised or might have to cease, but was simply concerned with whether over the 20 years the local inhabitants appeared to be using the land in the belief that they had a right to do so and the landowner made no effort to stop them. This was a matter of fact decided in favour of the Mistley residents by the judge at first instance and there was no good reason for an appellate court to interfere with the careful finding.

Comment

More than a decade since Mr Tucker’s application, the Supreme Court has confirmed that the Council’s decision to register the Land as a TVG was correct. The litigation over that period, culminating in the decision of the Supreme Court, has made an important contribution to our understanding of the interaction between the 2006 Act and the criminal law. While the Supreme Court has declined to answer the in-principle question (Ground 1), the court made it clear that where a landowner possesses lawful authority to continue with his pre-registration commercial activities after the date of registration of the land as a TVG, he is not committing an offence under the Victorian statutes (nor, indeed, under the modern criminal legislation). The residents of Mistley can now enjoy their general legal right to the 200 square meters of coastal concrete that constitutes their somewhat unusual town or village green.