Key advice for developers following the Supreme Court Mistley Quay TVG case

11th March 2021

Specialist Real Estate Litigator David Manda offers legal and practical advice for developers in light of the Supreme Court’s recent decision in the Mistley Quay Town and Village Green (TVG) case.

Why is the Mistley Quay case of interest?

In our previous briefing, we explain in some detail TVG registrations and the legal and practical concerns for landowners and developers. In short, any person may apply to register land as a TVG if a significant number of local inhabitants have indulged, as of right, in lawful sports and pastimes on the land for at least 20 years.  Once land has been registered, it is afforded the highest form of protection, which can severely restrict future use and development.

The Mistley Quay [1] case is of particular interest and importance because it is a stark reminder of the fact that land does not have to be the archetypal green with people feeding the ducks, dancing around maypoles, holding village fetes or listening to the sound of a ball on willow in order to meet the TVG criteria.  The land that was the subject of this long-running dispute was an area of concrete within a working port [2].

The case is also provides crucial guidance for landowners who themselves carry out activities on land which is [potential] TVG land – even where such activities might give rise to safety or other concerns for local inhabitants who use the land.

What legal and practical advice arises?

The Mistley Quay landowner used the land in question for the passage of port vehicles, including heavy goods vehicles, and for the storage of cargo.  After raising various arguments to resist registration of the land as a TVG before the High Court and Court of Appeal [3], all of which failed, the landowner appealed to the Supreme Court on the basis that the effect of TVG registration would be to criminalise its commercial activities on the land and/or that the local inhabitants use was not ‘as of right’.

The Supreme Court dismissed the appeal.  It decided that:

• Following a TVG registration, local inhabitants have to exercise their rights over land in a fair and reasonable way so as to respect the concurrent reasonable use by the landowner.
• TVG registration does not criminalise a landowner’s continuance of pre-existing activities which are warranted by law/done with lawful authority [4].
• Health and safety legislation applies irrespective of TVG registration and any concerns should be capable of being dealt with while respecting all parties’ rights and interests.
• A landowner’s concerns at local inhabitants’ use do not affect the quality of that use and therefore neither do they affect whether that use is as of right.

Landowners/developers should therefore note the following advice.

• On a site-by-site basis, consider whether it might be appropriate to prevent access to the land altogether (for example by erecting and maintaining secure boundaries, gates etc.) or whether permission should be given for the public to access and use the land, so as to prevent arguments that use of the land is as of right.
• Use appropriate signage to prevent any use by local inhabitants’ being as of right.
  • Whilst many landowners will be aware of the value of erecting signage, the background facts of the Mistley Quay case highlight that poor positioning of even the most appropriately worded signs can result in them having little or no effect.
  • A landowner must always consider what signs should say (should they be prohibitory or permissive); what land is covered by the signs; where signs are placed; and, crucially, how signs would appear to, and be interpreted by, those attempting to use the land.
• Investigate the possibility of depositing, with the local authority, before the TVG registration-requisite 20 years accrues, a notice [5] to bring to an end any period of use as of right for lawful sports and pastimes.
• Conduct regular site visits in relation to all potential development land. It will be important to monitor whether fencing, signage, gates etc. are in good order and whether/how any use is being carried on by local inhabitants.
• Remember that the apparent nature of the land (whether picturesque and green or unattractive scrub-, commercial- or wasteland) is not a relevant factor as to whether land is capable of registration as a TVG.
• Note that the type of recreational use that can give rise to a TVG registration can be less obvious than one might anticipate. Here, the main use was simply informal walking or wandering, with or without dogs. This is seemingly a very low bar and so landowners/developers should not become complacent in the absence of more obvious recreational pursuits.
• Remember that landowners cannot rely on the statutory regime of the land as a defence to a TVG application, nor on pre-existing commercial use, nor even on potential illegality/criminality, when a peaceful co-existence between uses can be established.
• Note that a landowner’s concerns for the safety of local inhabitants (which is actually what prompted the landowner’s attempt to secure its premises and its defence to the TVG application in the Mistley Quay case) do not constitute grounds for rejecting a TVG registration. Landowners must, therefore, be alive to their legal responsibilities to safeguard any visitors on their land, and in particular should take specialist legal advice where visitors might be using the land as of right rather than by the landlord’s invitation.
• Landowners should ideally take an informed and active role in preventing local residents from using land for activities which could be deemed lawful sports and pastimes, or permitting such use on appropriate terms. Landowners should seek specialist advice to enable them to apply a carefully thought-out strategic approach – which is specific to the particular parcel of land in question – to manage the risk of a TVG registration in each and every case.

How we can help

David Manda is a Director in Walker Morris’ specialist Real Estate Litigation team.  David is experienced in dealing with all types of development-related work – both from a proactive, risk-management perspective and when it comes to resolving disputes if they do arise.  If you would like any further advice or assistance in relation to any TVG queries or concerns, please do not hesitate to contact David, who will be very happy to help.

[1] T W Logistics Ltd v Essex County Council [2021] UKSC 4

[2] case law has also seen car parks, golf courses, school playgrounds, a quarry and scrubland all registered as TVGs

[3] including, non-exhaustively: local inhabitants’ use had been contentious and/or permissive; trespass; that the land was used as a highway; that recreational use was incompatible with the commercial use and with statutory purposes for which the port was operated; health and safety concerns for local inhabitants

[4] the Supreme Court did not go further, however, to decide the more general question, whether TVG registration would be possible in circumstances where that would criminalise a landowner’s activities

[5] pursuant to section 15A of the Commons Act 2006