A working quay in the Essex port of Mistley is in fact a village green, the Supreme Court ruled today.
The owner of the quay, TW Logistics, had argued that if the site was registered as a green, its commercial actives, which involved driving HGVs across the site, would be illegal. However, the court ruled that it could still do what it had been doing in the past, and could even expand its operations if it wanted to.
Village green cases are often contentious because if a space gets the designation it limits development on the site and ensures public access. This is the third village green case to go before the Supreme Court in the past six years.
The Mistley dispute is a long-running case. It has taken three years to get from the Court of Appeal to the highest court of England and Wales, and campaigners have been fighting to keep access to the quay open since TWL fenced it off in 2008.
While not as busy as in its heyday, the port of Mistley, near Felixstowe, is still very much a working port.
Typical cargo passing though the port includes grain, aluminium, fertiliser, bricks and zinc, which are usually loaded on or off heavy goods vehicles.
Although it bears little resemblance to the archetypal picture-postcard English village green, locals say that, for more than 20 years prior to being fenced off, it had been used for “lawful sports and pastimes by a significant number of local people”.
This included, dog walking, wandering, chatting, informal games, painting, swan-feeding and crab-catching at the water’s edge. All of which, they say, make it a space that meets the legal definition of a “town or village green”.
The ruling does not make the quay an anomaly. Rocks, car parks, golf courses, school playgrounds, a quarry and scrubland have all met the definition in the past and been granted the TVG designation.
Judges Lord Sales and Lord Burrows, giving judgment today, said the case “raises some important issues about the law relating to the registration of a town or village green”.
“Registration of an area of land as a TVG has important legal consequences for the landowner and for members of the public wishing to make use of it for recreational purposes. Upon registration, the landowner becomes obliged to let members of the public enter and use the land in certain ways,” they said in the ruling.
“Two Victorian statutes, which enacted criminal offences designed to protect the public’s use of TVGs, also have a potential impact on the landowner. The central question on this appeal is whether the registration of the land as a TVG would have the consequence that the continuation of the landowner’s pre-existing commercial activities would be criminalised under the Victorian statutes.”
The judges ruled that the pre-existing commercial actives would not, in fact, be criminalised, saying that “under the modern legislation” there must be “give and take on both sides”.
They added: “TWL has the legal right in the period after the registration of the land as a TVG to carry on with what it has been doing previously on the land, its activities are ‘warranted by law’. TWL would therefore not be committing an offence under the Victorian statutes in continuing its pre-existing commercial activities.”
The case was brought by local resident Ian Tucker, represented by law firm Birketts.
“This is a fantastic day for our tenacious and public-spirited client who has safeguarded the rights of inhabitants to enjoy spending time on the quayside at Mistley,” said former Birketts senior partner and public law specialist Nigel Farthing.
Ian Tucker added: “This truly is a momentous day for myself and the community of Mistley, who can now appreciate the sweeping views of the River Stour visible from the quayside without limitation.
“It has been a long and complicated process but we are very grateful for the continued support of the Birketts’ team.”
The five-judge panel unanimously dismissed TWL’s appeal.
TW Logistics Ltd v Essex County Council and another
Supreme Court (Lord Black, Lady Arden, Lord Sales, Lord Burrows, Lord Stephens)
