Registration of working quayside as TVG did not criminalise landowner's prior commercial activities

Registration did not, on the facts of the case, criminalise or otherwise prevent the landowner from using the land for pre-existing commercial purposes, provided those purposes remained compatible with the recreational rights protected by the TVG registration (TW Logistics Ltd v Essex CC and another [2021] UKSC 4).

Background

The quayside had been used concurrently for many years for both the landowner’s commercial activities (passage of vehicles and storage of cargo) and local inhabitants’ general recreation (dog walking and stopping to chat on the quayside).

In 2010, part of the quayside was registered as a TVG following an application made by a local resident. The application was accepted on the basis that it met the statutory criteria: the quayside had been used “as of right” for lawful sports and pastimes by significant numbers of local inhabitants for the preceding 20 years.

The landowner unsuccessfully challenged the registration in the High Court, the Court finding that the commercial and recreational uses had co-existed for many years and could continue to be compatible notwithstanding the TVG registration. The landowner’s appeal to the Court of Appeal also failed.

Grounds of appeal

The issue for the Supreme Court was whether the quayside had been validly registered as a TVG.

The landowner appealed on three separate grounds:

1. Land should not be registered as a TVG if that would criminalise the landowner’s existing commercial activities.
2. On the facts of this case, the landowner’s commercial activities would be criminalised after registration.
3. The use of the Land by the local inhabitants was not “as of right”.

Ground 1: Is TVG registration possible where the landowner’s prior activities would be criminalised?

Due to the conclusion reached on Ground 2, the Court declined to consider this point.

Ground 2: Were the landowner’s commercial activities in fact criminalised after the TVG registration in this case?

The Court held that they were not. Various potential offences were considered including interrupting locals’ use of a TVG for recreational purposes, driving a motor vehicle on a TVG without lawful authority, and health and safety offences. In each case the Court concluded the landowner would have lawful authority to undertake the activities in question, meaning no offence would be committed.

The Court outlined the principle of “give and take”, whereby locals must exercise their rights over a TVG in a fair and reasonable way, so as to respect the concurrent reasonable and established use by the landowner. The landowner cannot be prevented from undertaking activities of the same general quality and at the same general level as before the TVG registration. It may even carry out new and different activities than before, but only where those expanded activities do not interfere with the locals’ rights for recreation.

Ground 3: Was the local inhabitants’ use of the quayside “as of right”?

Use “as of right” is one of the necessary requirements for a valid TVG registration. The Court reiterated that this requires use of land by the locals in a way which would suggest to a reasonable landowner that those locals believed that they were exercising a right in doing so. That the locals may have moved out of the way of the landowner’s commercial activities at times did not prevent their use being as of right.

Comment

The decision is interesting in the way it reconciles a landowner’s legitimate commercial uses with locals’ recreational rights as protected by a TVG registration. It is also a reminder to landowners of the risks of registration. While a landowner is able to continue with its prior uses of the land, TVG registration will prevent expansion of or a change in activities on the land which would interfere with the protected recreational rights. This can make development very difficult or even impossible. Landowners need to be wary of turning a blind eye to activities on their land that could lead to an application for registration being made.

This case illustrates that applications for registration of land as a TVG often turn on their facts. Use “as of right” will require a use which is without secrecy, force or permission. Whether that is established or not is a question of fact in each particular case. Equally, whether the landowner’s pre-existing activities were criminalised by a TVG registration fell to be determined by examining the activities in this case.

It is perhaps disappointing that the Court declined to consider the general principle of whether TVG registration is barred if it would criminalise the landowner’s prior activities. This question will have to await a future decision and this leaves an element of uncertainty for both landowners and local inhabitants where land subject to a TVG registration is also used for commercial purposes.

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