Supreme Court upholds registration of a quayside as a green

When the Victorian statutes criminalising activities that inhibit use of land as a green were enacted, no one imagined that the legislation would, one day, apply to the very different types of land that have since been registered as town or village greens. TW Logistics Ltd v Essex County Council [2021] UKSC 4 concerned the registration of a concrete apron close to the water’s edge in a working port, used by heavy lorries, fork lift trucks and other vehicles. The land was also used by locals for recreation – until the Health & Safety Executive expressed concern and the port operator (a private landowner without statutory powers) erected a fence to prevent people from falling into the water. The local inhabitants responded by applying to register the land as a green – prompting litigation in which the port operator argued that it was impossible for the two different uses, commercial and recreational, to exist side-by-side post-registration because its commercial activities on the quayside would contravene the Victorian statutes governing the use of green. Consequently, so its argument went, the quay was ineligible for registration as a green. But the Supreme Court has upheld the registration. The court began by considering whether it was correct to say that the operator would be committing a criminal offence by carrying on its commercial activities post-registration. Fitch v Fitch [1797] 2 Esp 543 established that local inhabitants must exercise their rights fairly and reasonably, paying due respect to the landowner’s own use. And this has since been translated into the principle that there must be “give and take” on both sides. Furthermore, R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70 confirmed that post-registration rights to use land as a green for any lawful sport or pastime (whether or not corresponding to the particular recreational uses to which it was put in the pre-registration qualifying period) cannot interfere with competing activities of the landowner to a greater extent than during the qualifying period. So landowners remain entitled to continue to use their land for activities of the same general quality and at the same general level as before. It followed that the Victorian statutes do not criminalise a landowner’s activities post-registration so long as they continue as before. Such activities remain lawful and are “warranted by law”. So the statutes that restrict interferences with the use of land as a green would not apply. Furthermore, compliance with the Health & Safety Executive lawful requirements would not fix the port operator with criminal liability because it would have lawful authority for its actions. And the HSE’s requirements would, of course, be susceptible to judicial review. The court added that, in practical terms, the landowner would have some leeway to intensify its use of the port, with a concomitant increase in vehicle movements across the land, and to undertake new and different activities, so long as they did not interfere with the use of the land for lawful sports and pastimes. Any disputes that arose would fall to be resolved in the civil courts, as with other disputes relating to land. Allyson Colby, property law consultant