TW Logistics Limited v Essex County Council

 [2018] EWCA Civ 217                                                                           bailli link

The framework of planning law – arguably – provides a principled and balanced approach between a landowner’s desire to maximise the economic efficiency of their property and competing public interest.  This case illustrates the effect of a parallel regime whose effect is to restrict a landowner’s use of their land, and preserve it for all time in its current.   There is no compensatory regime for the landowner, and the effect is often arbitrary. 

Well that was a rabble-rousing start!  Anyone know what I’m talking about?

Section 15 of the Commons Act 2006 is not a piece of legislation that shares wide renown.  If you bumped into it in the frozen foods’ aisle in your local supermarket, you might not give it a second glance.  However this insignificant sounding section has educated the children of  many a lawyers, and caused many a property developers to weep bitter tears into their gin and tonics.

The impulse between this part of the Commons Act 2006 comes with pedigree.  I’m not going to do a debretts on it, but you could if you chose, look back to a case in 1757 about the common law right to run through wheat fields out of season.  Mrs May’s forerunner may have lost on that occasion, but the right to use land for recreation if it did not interfere with the legal owner’s use of it, and they did not object, was well established early.

Victorian Eco warriors with hipster beards contributed greatly to the development of what I shall call, for shorthand, the town and Village Green movement.  The idea that, with increasing industrialisation, it was a nice idea to have places where the worker bees, their dogs and children might repair for exercise and recreation.

Section 15 is the current manifestation of this movement.  An unkind person would wonder at the drafting of it: so many words and disparate, unexplained ideas flapping about, ready to be seized by that monstrous regiment of Dog Walkers, blackberry pickers and mushroom gatherers.  (This is an ‘in joke’ and if you don’t get it, don’ worry.  You’re probably not a property litigator)

What the legislation wants to do is a worthy one.  It is founded on the general feeling in English and Welsh law that if you, as a landowner, don’t exert yourself to stop people larking around on your land (in lawful activities) then after a while – twenty years in this case – you won’t be able to stop them in the future.  The monstrous regiment of dog walkers etc., will be able to make an application to their local authority (basically) and get the area on which they have been distorting themselves designated as a town and village green (TVG).

It’s a bit like acquiring a right of way, either for the benefit of a particular piece of land, or for public use.  If you allow people to use your field as a short cut to the pub, then after a while you won’t be able to stop them doing it in future.

Don’t get me wrong.  If you chose to erect barbed wire fences and hire large gentlemen wearing black leather jackets  politely to stop people tramping over your field in the first place, then the law will back you to the hilt.

Think also of the old law on adverse possession – or squatters’ rights as we used to call them: if you take timeous action to hoof interlopers out of your six bedroom house in Southwark (#justsayin’) then your county court will help you out.  Leave it for more than twelve years (as was) and the boot is on the other foot.

Like us, you’ve probably got a clear idea of what a village green is.  It probably encompasses some, but not necessarily all, of the following: ducks, grass, children, cricket, clandestine underage drinkers.

However town and village green status has been conferred upon rocks, car parks, golf courses, school playgrounds, a quarry and scrubland, not to mention a sustained (but failed) attempt over a tidal beach forming part of a port.   You might wonder if this was eco-enthusiasm gone crazy. Indeed, TVGs have been the nuclear option for the eternal British conflict – between those who want to build over the countryside/build homes for people to live in and the dog walking classes.     Many a proposed development has been frustrated by a timeous town and village green application, and how intrepid are the forces of dog walkers in seeking out new lands to colonise.

And so we come to the battle of Allen Quay.  Allen Quay is part of the Port of Mistley, near Manningtree in Essex.  Mistley is a modest, but still working port.  Should you have the odd small ship you’d like to disembark on the river Stour, then the port owners and operators  – TW Logistics – the appellant in this side, would be happy to accommodate you.  There is potential for onward transport by road.

As you try to imagine this battle field:  I don’t want you to think Harwich, or Tilbury.  On the evidence, only ninety HGVs in a particular year made the trip.  However, as many a local Mistley resident testified, it makes a mighty pleasant place to walk, with or without dogs, and to chat with your fellow flaneurs.   And if you should chance upon an HGV, then it is but little trouble to put the dog on the lead, or move your conversation to a safe distance.

This battle might never have erupted, had not, in 2007, the Health and Safety Executive bullied TW Logistics into erecting an unsightly fence along the edge of the quay to save the port employees, and dog walkers from an unscheduled dip in the estuary.  The Mistley fence provoked public demonstrations.  The village rose as to one to protest against their enforced segregation from the sea, and the deprivation of their liberty to go crabbing, feed the swans, and land pleasure craft on the quay.  One particular denizen, the second respondent, was moved to make an application to have the quay designated as a TVG, and after a public enquiry, the quay was so designated.

T W Logistics were unhappy.  There is a deliciously retro warehouse near the quay, which is just aching to be turned into flats-sorry-apartments, and for which they have secured planning permission.  The TVG designation was therefore supremely unhelpful, and hence – I am guessing – their attempt to have their quay deregistered.  They failed last year before Barling J, and the judgment on the rematch in the court of appeal was handed down last week.

And yes.  The hegemonic dog walkers win again. 

Lewison LJ paid tribute to the ingenuity of the appellant’s brief, veteran New Square Chambers silk, George Laurence, but remained politely unconvinced.

Cognoscenti will appreciate that every nook and cranny of section 15 has been prodded and pushed and pinched over the years, so I’d like a small round of applause for the side that pressed the Inclosure Acts into service.  The argument goes like this:

• Mistley is a working port.  Sometimes, (not that often) ships dock and discharge their cargo which is loaded onto HGVs.  This takes up space, and therefore may constitute an interruption of the use of the Allen Quay for the purposes of exercise and recreation.
• The Inclosure Acts criminalise any activity that tends to do this.
• Therefore, if Allen Quay is saddled with a TVG designation, the port operators will become criminals simply by carrying out their lawful business.  That just can’t be right, can it?

Neat eh?

As George Laurence confides to his readers on his web page:

I have always tried very hard to win “unwinnable” cases…where the law needs to be developed in some way… in order to achieve victory. 

Fighting talk, and the man has a point.  Lord Hoffmann spoke of his visceral unease at the lack of resemblance between the land registered [as a TVG] and the “traditional” village green. It is difficult to reconcile green swards and asphalt quays overlooking atmospheric tidal rivers, until you realise that what is being protected is usable public space, which is pleasant to look at and wander over.  Nicer than flats-sorry-apartments, and the loss of a place where you have become used to going to to blow away the cobwebs.

TW Logistics cannot be allowed to win because to do so would be to expose the flimsiness of the “give and take” rationale we see from Lord Brown in Lewis.  Flimsy, yes, but based on  robust common sense.  The public is not aiming to stop the activities the landowner has traditionally carried out on the land, hitherto compatible with their own enjoyment of the land.  You won’t stop golfers golfing on your brand new TVG, or farmers cutting grass, or horses grazing.

Similarly, TW Logistics are able to carry on their modest business as a working port.  What they cannot do is use the land for something different entirely, which would materially affect the enjoyment of the monstrous regiment of walkers.  The planning framework may have approved their aspirations for the site, but there is no joined up thinking between this and the Commons Act.  (Obviously, we see the same disconnect between public planning law and private law restrictive covenants).  They have been deprived of an economic opportunity, whilst the inhabitants have gained a pleasant place to continue to walk.

Don’t despair, though, if you are a property developer.  Dry those tears. Section 15’s ability to restrict development has been hobbled by subsequent amendments which restrict village green applications in certain circumstances – for example when a planning permission application has been submitted.  “Levelling the playing field between dog walkers and developers”  a pun too far?

Will TW Logistics appeal to the Supremes?  I’d bet against.  Lewison LJ is not a man to appeal lightly and policy considerations militate against a win there. Watch this space.