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Off Quay? Town and Village Green case of interest for developers

Town and Village Green (TVG) status is always a concern for promoters and developers taking land forward for redevelopment. But does the recent case of TW Logistics Ltd v Essex County Council and another [2021] UKSC4 help or hinder?

Local residents of Mistley Quay, near Manningtree (Essex) are rejoicing following the news that Essex County Council’s TVG registration for Mistley Quay has been upheld by the Supreme Court. The Quayside, a working port, is now confirmed as a TVG, after a successful application from a local resident, which met the statutory criteria. Interestingly, the land in question is not a green grassy area but is in fact a concrete Quayside, used by local residents for sports, walking dogs and general recreation.

The landowner, TW Logistics (TW) use the Quayside for its business. Heavy lorries, and other vehicles pass across the area registered as a TVG on a daily basis. TW argued to the court that the TVG status would criminalise the commercial activities of the company after registration if the application succeeded. And questioned whether registration is barred if it would criminalise the landowner’s continuing activities?

The Supreme Court stated that there should be ‘give and take’ approach by both TW and the general public when exercising rights over the land. The court was clear in stating that the TVG status would not criminalise the landowner’s pre-existing business activities as TW have lawful authority to carry them out. The court was clear that the legislation set out the bars to registration, and this was not one of them.  

So what does this mean for promoters and developers? It is now clear that any land (it doesn’t have to be pretty!) can be a TVG provided the requisite use as of right can be shown. And the Court was clear that it would not impose additional bars on registration. Developers must rely upon, and understand, the existing legislation. Schedule 1A of the Commons Act 2006 provides for ‘trigger events’ which can prevent registration as a TVG under section 15C. The developer friendly case of Wilshire Council v Cooper Estates Strategic Land Limited [2019] EWCA Civ 840 made it clear that the existing legislation was sufficient to protect allocated development sites. Cooper Estates relied on paragraph 4 of schedule 1A, where a ‘development plan document which identifies the land for potential development is published for consultation..’ and this prevented registration as a TVG.

TW’s case is a timely reminder to promoters and developers that any land can be registered as a TVG. Legislation will protect land where a “trigger event” has occurred. But there will always be sites where “trigger events” have not occurred. If a Quayside can be registered with the requisite use, then most sites can be too! Due diligence is going to be an even more crucial element when acquiring land. Don’t forget an up-to-date local search and site visits to assist in determining whether a TVG registration might be possible, when pre-TW it might have been impossible!

‘TWL Logistics could continue its activities as before, provided it did not interfere with the right of the public to use the land, and some "give and take" was required on both sides, the ruling added.’

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