The court’s recognition of TW Logistics Ltd’s (TWL) entitlement to continue to use the land involved as part of a working wharf is welcome, but landowners will have to give careful consideration to how to do so in such situations, given the court’s express statement that TVG registration could prevent expansion of TWL’s operations.
The case related to an application to register land forming part of the private port of Mistley, owned in part and operated by TWL, under section 15 of the Commons Act 2006. Following an inquiry, an inspector recommended registration, which the county council put into effect. Last year, the High Court refused TWL’s application for removal of the land from the register and a declaration that it was not a TVG.
The Court of Appeal’s judgment focused on TWL’s arguments about the potential criminalisation of its commercial activities under 19th century legislation known as the "Victorian statutes". TWL argued that its interruption of the use or enjoyment of the TVG as a place for exercise and recreation and its occupation – largely due to laying pallets on the land – meant the registration should not be confirmed.
The Court of Appeal’s decision to dismiss TWL’s appeal principally centred on its endorsement of the High Court’s finding that the co-existing port and recreational uses were, on the facts of the case, compatible. It confirmed that landowners may use their land in the way they did before registration of the TVG where that use is not incompatible with recreational use, following R (Lewis) v Redcar and Cleveland Borough Council (No 2) .
The court decided that the prohibitions in the Victorian statutes were to be construed as part of the same system as the TVG registration and in the light of legal uses. The landowner had a right to continue a pre-existing use compatible with recreational use, so its acts were lawful and not a nuisance that contravened the Victorian statutes, it concluded.
Having regard to the actual TVG and uses involved at the Mistley site, it found that the landowners had simply carried on doing what they had been doing before, so there was no interruption to the recreational use. Continuing a pre-registration use in circumstances which the law permits was done with lawful authority and there was no reason to think that continuation of those uses without such interruption of use or enjoyment would have that effect in future, it concluded.
TW Logistics Ltd v Essex County Council and Another; Date: 5 October 2018; Ref:  EWCA Civ 2172
Vanessa Ralph is a legal director at DLA Piper