A quay, whose owner was not a statutory body, has qualified for registration as a green

In 2008, following the threat of enforcement action by the Health and Safety Executive, the owner and operator of the port of Mistley erected a fence along the quayside to prevent people falling into the water. “Free the Quay” campaigners protested vigorously, claiming that they had used the waterfront for recreation for decades. The quay was situated in front of industrial buildings and formed part of a concrete apron, which was used by lorries and other vehicles when ships docked. The owner and operator of the port argued that the activities that it carried on there were incompatible with registration as a green. But, following a non-statutory public inquiry, the council registered the waterfront as a green. The port operator asked the High Court to remove the land from the register. In TW Logistics Ltd v Essex County Council [2017] EWHC 185 (Ch) it claimed that the recreational use had been contentious and not “as of right”, thanks in particular to its signage in the port area. But the judge refused to reverse the decision. No one had ever been warned off the land. And, having considered the wording and location of the signs (which had not been posted at the entrances to the land in question, or painted on the ground), the judge decided that a reasonable person would have understood them to refer to another area of the port, once situated behind a raisable barrier. The judge also rejected claims that the user had been permissive. Excluding the public from other areas of the port could not be interpreted as meaning that users had the operator’s permission to use the quay for recreation. The judge accepted that the operator had erected “no fishing” signs. But a ban on fishing said absolutely nothing about what other activities might or might not be permitted. By contrast, a sign requiring dogs to be kept on leads might have indicated that the operator was granting users permission to walk their dogs along the quay. Had recreational use of the waterfront been displaced or excluded during the commercial activities carried on there? The judge ruled that the uses had co-existed. Locals had visited daily, using the quayside to walk, play, chat with acquaintances and catch crabs, and for other pastimes, and the fact that pedestrians avoided vehicles, or that goods were stored or lorries were parked on the quayside for relatively short periods, did not mean that recreational uses had been displaced or excluded. Were the uses incompatible? The operator argued that recreational use would contravene health and safety legislation. Furthermore, its commercial activities would contravene Victorian statutes governing the use of greens. In addition, section 34 of the Road Traffic Act 1988 makes it a criminal offence to drive over a green. The judge was unimpressed. He took the view that there must be a health and safety solution that respected locals’ rights at the water’s edge and ruled that potential criminal liability under the Victorian statutes did not preclude registration of the quay as a green. He also suggested that a prosecution would be unlikely to succeed, unless the operator’s commercial activities were to change and interrupt recreational use and enjoyment of the quayside.   Allyson Colby is a property law consultant