T W Logistics Ltd v Essex County Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lewison,Lord Justice David Richards,Lord Justice Lindblom
Judgment Date05 October 2018
Neutral Citation[2018] EWCA Civ 2172
Docket NumberCase No: A3/2017/1892

[2018] EWCA Civ 2172

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION

Mr Justice Barling

HC-2014-001550

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Lindblom

and

Lord Justice David Richards

Case No: A3/2017/1892

Between:
T W Logistics Limited
Appellant
and
(1) Essex County Council
(2) Ian James Tucker
Respondents

Mr George Laurence QC (instructed by Wilkin Chapman LLP) for the Appellant

Mr Andrew Sharland QC (instructed by Essex Legal Services) for the 1st Respondent

Mr Richard Wald (instructed by Birketts LLP) for the 2nd Respondent

Hearing dates: 17 th – 19 th July 2018

Judgment Approved

Lord Justice Lewison

Introduction

1

The issue on this appeal is whether part of the working 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 to Parliament in 1958. They proposed a definition which included:

“… in a rural parish any unenclosed open space which is wholly or mainly surrounded by houses or their curtilages and which has been continuously and openly used by the inhabitants for all or any such purposes [i.e. lawful sports and pastimes] during a period of at least 20 years without protest or permission from the owner of the fee simple…”

3

As Lord Hoffmann commented in Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674 at [15]:

“The commission obviously felt some concern about allowing any land whatever to become a deemed village green after 20 years use by local inhabitants for sports and pastimes.”

4

However, Parliament did not adopt this definition. Instead both in the Commons Registration Act 1965, and now in the current legislation contained in section 15 of the Commons Act 2006, the legislation provides for a much more expansive definition. Section 15 (2)(a) and 15 (3)(a) and 15 (4)(a) include in the definition any land on which:

“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.”

5

The width of the definition may lead to “a visceral unease at the lack of resemblance between the land registered [as a TVG] and the “traditional” village green”: Oxfordshire at [37]. However, the consequence of the definition is that there have been registered as TVGs: rocks, car parks, golf courses, school playgrounds, a quarry and scrubland. A sustained attempt was made to register a tidal beach forming part of a port operated by statutory undertakers as a TVG; and the attempt failed only on technical grounds. Parliament has had a number of opportunities to change the definition but has not done so in any respect material to this appeal.

6

I note in passing that it is not entirely easy to find a positive duty on a registration authority to register as a TVG land which falls within section 15. The authority has a duty to keep a register under section 1 of the 2006 Act. Section 3 (2) provides that the land registered as a TVG in the register “is to be” such land as “may be so registered in it under this Act”. That is probably the source of the duty; but at all events Mr Lawrence QC, for TW Logistics Ltd (“TWL”), did not contend that there was no such duty.

The facts

7

I can take the essential facts from the judge's careful and comprehensive judgment.

8

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. It is a private port. TWL is not a statutory undertaker; and has no statutory obligations as a port operator. 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 30 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.

9

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 Port Road; which is the main access route for HGVs and other port traffic from the town of Mistley.

10

The land which is registered as a TVG is part of an area of the port known variously as Thorn Quay or Allen's Quay. 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 TVG is a warehouse known as the Thorn Quay warehouse (“the 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.

11

There is also some container traffic through the port. Containers are brought by HGVs from Felixstowe and unloaded in the Stockdale warehouse or compound. They are later collected by HGVs. In both cases the HGVs enter the port area via the Port Road, and leave the same way, sometimes using the TVG to turn round in when there is insufficient space in the Stockdale area.

12

Running alongside part of the south western boundary of the TVG is a block of buildings comprising both residential and industrial units. This block is called the Grapevine (after a pub that was once there). Between the Grapevine and the TGV runs a short stretch of public highway. HGVs and other vehicles use these three stretches of road, together with the TVG, as the main route through the port area, from the Stockdale warehouse and compound in the west to the Baltic area in the east. Although there is apparently no formal agreement or right, it is possible that the cars of Grapevine residents and of their visitors, parked outside their properties, are parked wholly or partly on that public highway and/or on the part of the TVG adjoining it. To the south, on the other side of the Grapevine, is the High Street, which is the main street of Mistley.

13

Following a non-statutory inquiry the inspector appointed by Essex CC as registration authority found that the land now registered as a TVG had been used as of right for lawful sports and pastimes by a significant number of local people. The land so used included both the edge of the quay and the quay itself. The main recreational activity which the inspector found to have been established was informal walking or wandering, with or without dogs, and not on a fixed route, and people often standing and having a chat with others in association with such wanderings. He also found that there had been other activities such as informal games and social activities; and also crabbing at the water's edge. In addition some people painted or drew, although that was a minor part of the overall activities. Although the inspector found that there had also been swan feeding, the judge decided that that activity took place with the permission of TWL; and so was excluded from consideration.

14

Concurrently with these sports and pastimes, the inspector found that there had been port-related commercial activities throughout the relevant period (with the possible exception of the very edge of the quayside near the bollards located there, and even that area was, he found, used in the earlier part of the period for tying up commercial “lash” barges). These activities consisted of the passage of dock-related commercial vehicles, including HGVs and forklift trucks, also, to a lesser extent, the loading and unloading of commercial vehicles, and occasional temporary storage of materials. In addition, he noted that other motor vehicles, by no means always port-related, parked there.

15

The two types of activity had co-existed for very many years including throughout the relevant 20-year period, and local people from time to time sensibly got out of the way of a passing lorry or forklift truck.

16

The inspector was alive to the differences between the TVG in this case and the traditional perception of a village green. However, he said at para 16.142 of his report:

“As it happens, Allen's Quay at Mistley … could in my view be seen as having the slight air about it of a town or village “square” (albeit in this case on the one side open to the water of the estuary), rather than looking like a classic “green”. I mean this in the sense of its being a hard-surfaced, multi-purpose publicly accessible area in or near the centre of a...

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2 cases
  • T W Logistics Ltd v Essex County Council
    • United Kingdom
    • Supreme Court
    • 12 February 2021
    ...[2021] UKSC 4 Supreme Court Hilary Term On appeal from: [2018] EWCA Civ 2172 Lady Black Lady Arden Lord Sales Lord Burrows Lord Stephens Between: T W Logistics Ltd (Appellant) and Essex County Council and another (Respondents) Appellant David Holland QC Toby Watkin (Instructed by Wilkin Cha......
  • R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs
    • United Kingdom
    • Supreme Court
    • 11 December 2019
    ...of rights vested in local inhabitants after registration. That approach was taken a stage further by the Court of Appeal in TW Logistics Ltd v Essex County Council [2019] Ch 243, holding that the 19th century statutes, as applied to a registered modern green, are not to be construed as int......
1 firm's commentaries
  • Town And Village Greens: Court Of Appeal Delivers A Salutary Lesson To Landowners
    • United Kingdom
    • Mondaq UK
    • 15 October 2018
    ...or village green if they take no action to stop the public using their land. In TW Logistics Ltd v Essex County Council & Anor [2018] EWCA Civ 2172 the Court of Appeal unanimously ruled that part of a working wharf on the River Stour at Mistley in Essex was properly designated as a town......

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