T W Logistics Ltd v Essex County Council and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Barling |
| Judgment Date | 08 February 2017 |
| Neutral Citation | [2017] EWHC 185 (Ch) |
| Docket Number | Case No: HC-2014-001550 |
| Court | Chancery Division |
[2017] EWHC 185 (Ch)
The Honourable Mr Justice Barling
Case No: HC-2014-001550
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
In the matter of section 14 of the Commons Registration Act 1965
Royal Courts of Justice
The Rolls Building
Fetter Lane
London EC4A 1NL
Douglas Edwards QC and Ross Crail (instructed by Wilkin Chapman LLP) for the Claimant
Andrew Sharland (instructed by Essex Legal Services) for the First Defendant
Richard Eaton, Solicitor Advocate, of Birketts LLP for the Second Defendant
Hearing dates: 6 July 2016 (reading), 7 July 2016, 8 July 2016 (view), and 11–15 July 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| Section: | Para: |
| Introduction | 1 |
| The relevant legislation | 4 |
| Overview of the port area and operations | 6 |
| Background to the claim | 12 |
| The original application and the public inquiry | 12 |
| The Inspector's Report | 15 |
| Subsequent Events | 17 |
| The present claim | 21 |
| The grounds | 22 |
| The evidence and witnesses | 25 |
| The nature of the court's jurisdiction | 30 |
| Essex CC's role in this claim as registration authority | 35 |
| Grounds 1 and 2: Use was contentious, alternatively permissive, and therefore not "as of right" | 44 |
| TWL's submission | 44 |
| The meaning of "as of right" | 45 |
| The meaning of nec vi | 50 |
| The meaning of nec precario | 59 |
| Did signage render use of Allen's Quay "contentious"? | 65 |
| Did conduct render use of Allen's Quay "contentious"? | 84 |
| Conclusion on the "contentious" issue | 101 |
| Implied permission | 102 |
| Conclusion on nec precario arguments | 118 |
| Conclusion on grounds 1 and 2 | 119 |
| Ground 3: (1) incompatibility between use as a TVG and commercial use (2) recreational use is not of the requisite quality Ground 5: incompatibility with relevant statutory regime | 120 |
| Summary of TWL's submissions | 121 |
| Lewis v Redcar | 124 |
| The Newhaven case | 138 |
| The Oxfordshire case | 143 |
| Co-existence or exclusion/displacement/incompatibility in fact | 144 |
| Conclusion: co-existence or exclusion/displacement/incompatibility in fact | 160 |
| Criminal offences — the Victorian statutes and s.34 Road Traffic Act 1988 | 161 |
| Discussion and conclusion on the Victorian statutes and s.34 | 176 |
| TWL's obligations under the health and safety regime | 188 |
| Health and safety obligations: discussion and conclusion | 194 |
| Grounds 3 and 5: conclusions | 199 |
| Ground 4: Land not used for lawful sports and pastimes | 201 |
| Discussion and conclusion: ground 4 | 213 |
| Ground 6: the railway issue | 220 |
| Discussion and conclusion on ground 6 | 224 |
| Conclusion: TWL's claim | 231 |
Glossary
| Paragraph where term described | |
| 1 | |
| "the 1965 Act"1 | 1 |
| "the ABC area" | 15 |
| "Allen's Quay" | 9 |
| "Anglia" | 14 |
| "the Application Site" | 13 |
| "Baltic Quay" | 9 |
| "the Clip" | 69 |
| "Eastern Transit" | 9 |
| "Edme" | 14 |
| "Essex CC" | 2 |
| "Gladedale" | 14 |
| "the Grapevine" | 11 |
| "HSE" | 12 |
| "the Inspector" | 14 |
| "the Land" | 1 |
| "the Maltings" | 9 |
| "the Northern Notices" | 73 |
| "the Plan" | 8 |
| "the Port Road" | 8 |
| "the Report" | 15 |
| "the Stockdale compound" | 8 |
| "the Stockdale warehouse" | 8 |
| "TQW" | 9 |
| "the TQW Notices" | 69 |
| "TVG" | 1 |
| "TWL" | 2 |
Introduction
This claim involves the question whether an area of land forming part of the Port of Mistley in Essex ("the Land") should remain registered as a town or village green ("TVG") pursuant to the Commons Act 2006 ("the 2006 Act"), or whether the TVG register should be rectified by the de-registration in whole or in part of the Land by the exercise of the court's jurisdiction under section 14 of the Commons Registration Act 1965 ("the 1965 Act").
The Claimant, TW Logistics Limited ("TWL"), represented by Mr Douglas Edwards QC and Ms Ross Crail, seeks an order that the TVG register be rectified by the removal of the Land, and a declaration that the Land is not a TVG. The First Defendant, the Registration Authority ("Essex CC"), represented by Mr Andrew Sharland of counsel, contends that the claim should be dismissed on the basis that the Land was correctly registered. The Second Defendant, Mr Ian James Tucker, has worked within view of the Land for many years and is the original applicant for registration. He seeks to uphold the registration, and is represented by Mr Richard Eaton, a solicitor advocate.
Each of the parties has supplied me with a detailed skeleton argument. I have also been greatly assisted by the speaking notes and other materials supplied to me both during the hearing and, in relation to certain issues which the parties did not have time to cover fully, after the hearing. At the parties' request I visited the site of the Land, and the surrounding area, on Friday 8 July 2016.
The relevant legislation
The registration of the Land as a TVG is governed by the 2006 Act, section 15 of which (so far as relevant) provides:
"(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), ( 3) or (4) applies.
…….
(3) This subsection applies where:
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the time of the application but after the commencement of this section; and
(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b)."
The present claim for rectification of the register is brought under section 14 of the 1965 Act, which (so far as material) provides:
"The High Court may order a register maintained under this Act to be amended if … (b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act; and … the court deems it just to rectify the register."
It is common ground that no regulations have been made, and that although on its face the section applies only to registrations made "in pursuance of s.13" of the 1965 Act, it also applies to this one made under s.15 of the 2006 Act, by virtue of the Commons Act 2006 (Commencement No 2, Transitional Provisions and Savings) (England) Order 2007 ( SI 2007/456).
Overview of the port area and operations
The following is intended to be a high level and non-controversial description of the layout of the port of Mistley, and of commercial operations there.
Mistley is a small town in Essex, lying on the southern bank of the tidal estuary of the River Stour, upstream of Felixstowe. It has been a port for several centuries and remains one to this day. The port of Mistley is owned in part, and operated by, TWL. Both inward and outward bound trade passes through it. Cargoes, typically of grain, fertiliser, bricks, aluminium, or zinc, are brought to and taken from Mistley by HGVs. The vessels serving the port have become larger over the last thirty years or so. During 2007 about 90 vessels docked at Mistley to unload or load cargo or both. The average cargo in that year was about 1,900 tonnes per vessel, whereas in 1977 432 ships docked, each carrying on average 256 tonnes. Overall tonnage passing through the port peaked at 445,000 tonnes in 1986. In 2007 the corresponding figure was 173,552.
Certain features of the port area and town of Mistley, including the Land itself, are marked on the plan at Annex 1 to this judgment ("the Plan"). In general terms the port consists of an elongated frontage to the Stour estuary, running on roughly an east/west axis, with port storage areas including both warehouses and open storage in certain locations. At the west end of the port is an area which includes the main warehouse and a fenced storage area. These are known respectively as the Stockdale warehouse and the Stockdale compound. Running roughly along the south side of the Stockdale area is the main access route for HGVs and other port traffic from the town of Mistley. This road is known, unsurprisingly, as the Port Road.
The Land forms part of an area of the port known variously as Thorn Quay or Allen's Quay. 1 It is situated immediately to the east of the Stockdale compound, and
includes a stretch of the water frontage. On the eastern boundary of the Land is a warehouse known as the Thorn Quay warehouse ("TQW") and the beginning of a section of dock frontage known as the Eastern Transit. The Eastern Transit is so called because it is the route which HGVs and other vehicles must take in order to access those parts of the port which lie to the east of the TQW, including in particular Baltic Quay. The latter is the area of the port where virtually all the ships which call at Mistley now tie up to unload and load, because the larger vessels currently in use require the deeper water available there. Cargoes are either stored on Baltic Quay until shipped or collected by HGV, or are moved (usually by the port's own unlicensed "dock runners") to the Stockdale warehouse or compound to await collection by HGV or onward transit by sea. The Eastern Transit is...To continue reading
Request your trial
-
T W Logistics Ltd v Essex County Council
...port of Mistley has been properly registered as a town or village green (a “TVG”). Barling J held that it was. His judgment is at [2017] EWHC 185 (Ch), [2017] Ch. 310. 2 The modern system of the registration of TVGs has its origin in a report of the Royal Commission on Common Land presented......