The Changing Landscape of Town and Village Greens: Analysing the Supreme Court’s recent decision of the Mistley Quay case

In T W Logistics Ltd v Essex County Council and another [2021] UKSC 4 (“the Case”), the Supreme Court ruled that a concrete quayside at Mistley Quay in Essex is classified as a town and village green (also known as having “village green status”).  This decision was the final legal challenge brought by the port owner (T W Logistics) following its 13-year dispute over 6ft fencing. It raises important health and safety issues for landowners as well as important considerations for property developers.

What is town and village green status?

A town and village green (“TVG”) invokes images of summer’s days, fayres, and quaint English countryside (an image that the judgment draws on).  From a legal perspective, town greens and village greens are the same. The difference merely depends on the location of the green. A TVG is defined in the Commons Act 2006 as land that “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 an least 20 years”. Where a land has TVG status:

—  The public has a legal right to use it and it is a criminal offence to do something which interrupts or obstructs the public’s use of this land or to damage it.

—  It is an offence to drive over a registered TVG without lawful authority.

—  Greens may also be subject to any registered rights of common.

—  Registration of a TVG is also likely to prevent development.

You may well be wondering, how can a concrete quayside been viewed as a TVG? Read on.

Background

The land in question is located by the quayside of Mistley port.  The port owner and operator had been using the land for temporary storage of cargo and the transit of port vehicles.  At the same time, locals used the area to walk dogs, chatting and “general recreation” including sports.  The port operator and the locals had been doing this for many years.

All was well until, in 2008, the operator erected a 1.8m fence along the quayside in response to fears of people falling into the water and potential enforcement action by the Health and Safety Executive (“HSE”).  Unfortunately, campaigners branded the fence an “eyesore” preventing full use of the quayside by the public. In 2010, a local resident applied for part of the quayside to be registered as a TVG, available to the public for recreational use. TVG status also meant that the fencing would be deemed an obstruction.  Upon this application and following a public enquiry in 2015, part of the land was named as a TVG having been used by a significant number of people for over 20 years in accordance with the above legal definition of a TVG.

The port operator appealed on three grounds, one of which was that they may be at risk of criminal penalties by operating HGVs in close proximity to the public.  The High Court dismissed an appeal by the port operator, which was also upheld by the Court of Appeal. The port operator appealed again to the Supreme Court to ultimately decide whether the land had been validly registered as a TVG.

What did the Supreme Court decide?

The Supreme Court unanimously decided that the quayside amply met the criteria to be considered a TVG.  It ruled that the port operator’s activities were not being criminalised by the TVG status; both the owners and locals had exercised their activities in fair and reasonable way, it was a relationship of “give and take”. The port operator could continue its activities, such as using port vehicles, provided it did not interfere with the right of the public to use the land. The Supreme Court also said that it was possible to continue this relationship and use of the land even with TVG status.

What does the judgment mean?

The immediate impact is that the port operator will have to replace the fencing with an alternative that allows residents access to the waterside for the first time since 2008.

From a health and safety perspective,  it highlights that whilst considering health and safety issues and preventative measures, landowners should also take care to consider the type of land it is. In making its decision, the Supreme Court was not suggesting the port operator ignored pending enforcement action but instead there should have been dialogue with locals about the type of barrier that was used.  Campaigners to remove the fence suggested talking to them about an ‘environmentally and aesthetically acceptable form of safety barrier along the quay edge’. The port operator acted properly in considering health and safety concerns (as all businesses have a duty to consider and manage any risks on land), but its method of preventing potential falls using very tall fencing, was not appropriate on the basis it obstructed access to and use of the TVG land.

The decision also challenges our traditional views of what constitutes a TVG, i.e. archetypal village greens with green grass. This land was a 200sq m area of concrete in a working port, where HGVs are driven.  Instead, when determining whether land is a TVG, it is important to understand what the land is used for first, rather than what it looks like.  It is of particular interest for developers to understand the changing landscape of what TVG land may look like. A search can be carried out if land is currently registered as a TVG but not unknown future registrations. A successful registration may also significantly devalue land.

The combined experience of our Regulatory and Real Estate teams can help you understand your risks and obligations when it comes to TVGs, as well as applying for or opposing TVG status. Please do get in touch.