On 1st October a demonstration was held on the quay where Simon Bullimore, Chairman of FTQ made a speech which attempts to answer all your questions about the Village Green and why the the fence is still there. At the end of the speech he thanked everyone who attended for their continued support and paid tribute to Ian Tucker, a great supporter of Free the Quay, who sadly died last year.
Please read the speech and if you would like to help sign our petition.
What was the quay like before TWL erected the fence?
This is a story of one quay and two fences with a big bad wolf introduced at the end. The same quay figures in all three parts of this story but you cannot see it in its fully glory today. Like many of you, when I first came to live here, I would be refreshed on my return by the sight of a barge or one or two boats alongside the quay. They are here today but the crew cannot get ashore. Just imagine the scene at any time in the last 200 or 300 years before access was restricted. If you look over there you will see a sign painted on the brick work for the Grapevine Inn on Grapevine Cottages. Imagine people sitting outside the Grapevine happily drinking, enjoying the evening, looking at the boats tied up alongside the quay or sailing past on the tide, children fishing, playing ball, playing hopscotch without a care in the world, and whilst I am sure their parents kept a close eye on them, free to run around the quay as they wished. You can all see over there pictures which give an idea of the harmless joyful scene of the people of Mistley and their families at play on the quay.
When and why was the fence erected?
In 2008, TWL, the owner of the quay, started to erect this ghastly fence at the edge of the Quay. For some two years they had ignored the entreaties of the Health and Safety Executive to do something about the quay. If it was a working quay used for port activities, then they should have suitable ladders and life buoys and at the minimum a white or yellow line along the edge of the quay to ensure the safety of the port workers. If it was not part of the working quay, then a suitable barrier and warning signs should be installed.
How was this implemented by TWL?
They cut away the ladders on the face of the quay which would enable anyone in the water to get back to the quay, they enclosed the only lifebuoy in the enclosure over there and they installed what they regard as an unscalable fence. Look at it. First, it is not unscalable as you can see from the pictures on the fence but scalable with risks to the individual crossing it , secondly as events have proved to be the case, any rescue of people in the river is made much more difficult, if not impossible. Thirdly the fence is set so close to the edge of the quay that anyone trying to get ashore, for instance to moor or go up to the café or the Thorn, will find it a perilous activity.
A ladder precariously perched on the top of the fence will pose a hazard to those trying to cross it. Examples of the ladders originally installed on the quay were recently recovered from the bed of the river and are over there for you to see. They were cut up by TWL and were thrown into the river 15 years ago with complete disregard of the threat to the delicate wooden or fibreglass hulls of boats settling on the mud or thought of anyone in distress in the water trying to get ashore. This was TWL’s contribution to improved Health and Safety.
Does TWL have any real concern for the Health and Safety of quay users?
This was the regard that TWL had and still has for the health and safety of their neighbours and visitors to the quay. Look too at the construction of the fence. Each of these panels, (which when new, which they are clearly not, cost about £50) Shake that one over there, would you want to put your future on a ladder resting against this fence? If you had the misfortune to have fallen from a boat off the quay or further up or down the river.
How would you feel when you found that there were no ladders to get to the top of the quay, no way to cross the fence and no life buoy to be thrown to you? A further contribution to Health and Safety by TWL.
Can people still access the quay from the river?
I ask you to look at those photographs over there shake the fence and contemplate your future if you found yourself in distress in the river. This fence contributes nothing to health and safety but a great deal to increase the risk of harm to anyone seeking to use the quay whether from quayside or the river. But yes people can and still do so but with considerably greater foreseeable and avoidable risk to themselves and others.
What do Health and Safety experts say about the fence?
We have commissioned a report by a consultant Health and Safety expert and he has identified the advantages and disadvantages of the existing fence from the point of view of Health and Safety. His views are an endorsement of the deficiencies to which I have drawn attention; the only advantage, which would not occur to most of us would be that it prevented access from the river to the quay. Please reflect on what it tells you about the attitudes of TWL to the health and safety of the people of Mistley using their village green or of a sailor or others participating in water sports.
Why has it taken so long to deal with the problem?
Those of you who do not know the details of the case might say “what is this piece of concrete with a fence on it that makes it a village green”. The answer is that, as the Supreme Court has decided, it is used for the lawful sports and pastimes of the people of Mistley; that is all we wish to do. Our legal system usually offers a right of appeal to parties to litigation. How would we have felt if the case went against us without the possibility of ending in success in the Supreme Court? All lawsuits, particularly when they end in the Supreme Court, take a long time and cost the losing party a huge amount of money.
Has the Supreme Court ordered the fence to be taken down?
No, that was because that question was not before the Court. The reason for the establishment of village green rights is for the highest Court in the land to settle without further challenge the right of the people of Mistley to use the village green right up to the vertical edge of the quay. In other words, the fence is now an obstruction on the village green preventing the proper exercise by the people of Mistley of their rights under the law. Now we could move on and it could be replaced with a more acceptable barrier which was not an obstruction on the village green. Village green users have the right to use the village green right up to the vertical face of the quay.
If the Supreme Court delivered the judgment more than 2 years ago why has TWL not removed the obstruction on the village green?
You may well ask what has been going on since the Supreme Court reached its decision in 2021? We, along with others interested, were encouraged by the Supreme Court to get together with all the parties concerned and sort out the issue of the fence. The case before the Court was purely to establish rights to use the quay; it would always be in the ownership of TWL subject to the rights to use the quay as a village green. This is much like the right to use a footpath where the ownership of the path is retained by the landowner who can do nothing to obstruct the use as a footpath by those entitled to do so.
Why has TWL failed to act?
You may well think the judgement of the Supreme Court and their expressing their hopes and expectations that the parties would get together to resolve the issue would be sufficient to get TWL, ECC, TDC, the Health and Safety Executive and the people of Mistley around a table but I have to tell you that only you, the people of Mistley, were enthusiastic about trying to resolve the issue in accordance with the hopes and expectations expressed by the highest Court in the land. This appears to be irrelevant to TWL and ECC. After several futile attempts to have a meeting with TWL to discuss the issue, it became clear that they would not entertain any discussion; a point-blank refusal but needlessly wordy response not untypical of TWL. To demonstrate that we are not out of step with other quays in Essex and Suffolk between Southwold and North Fambridge we did a survey of 21 quays accessible to the public, and the only one, the only one, which had a high fence restricting access from the quay and from the river is Mistley. This report has been included and approved as representative by our H&S consultant and was sent to TWL and ECC. TWL ignored this convincing evidence so I am sure all of you who love the area will have noticed how little protection is given in most places. Those who live in the area, and others who know Manningtree, just think of the quay beside the beach at Manningtree where users of the beach of all ages can have access to the quay where there is a waist high barrier on the corner of the quay but otherwise it is unprotected. We are not asking for the impossible, we fully accept the need for a barrier alongside the edge of the quay. Just not this one.
Should we not expect ECC to make further efforts to get the benefit of their registration and defend the village green?
Having met a brick wall in trying to speak to TWL we contacted ECC, as the registration authority for the quay and a party to all the legal proceedings that took us to the Supreme Court. ECC has always in meeting agreed with our agreed approach was to get everyone together but they have now transformed into the big, bad wolf of the story. We have written to them 4 times and I am sorry to say we have not received reply from them in the last 7 or 8 months until a curt response 10 days ago when we informed them of our intention to hold this event. Neither TWL or ECC has agreed to meet us to discuss the way in which the fence at Mistley is completely out of step with the approach adopted in similar situations and the express wishes of the Supreme Court.
Did you inform ECC that you were unhappy with their failure to respond to our request for them to take action?
ECC had told us in a meeting a year ago at which we discussed the steps that could be taken by us individually and jointly to move forward and it was decided that Free the Quay would make one last big effort to get TWL to come to the table and, if we failed, the Leader of the Council would bring the full authority of the Council to get the ball rolling. Our happy relationship over the years obliged me to write to them a couple of weeks ago informing them of our intentions for today in advance and inviting them to this gathering. They had a chance of participating if they wished to do so or to bring news about their proposed action.
I have received an answer from them. They say that they are not the enforcing authority. They are right about that; and I told them that nearly a year ago after I heard unofficially that they asked Tendring District Council to take action and Tendring said the same thing. The reason for this is that enforcement action can only be taken if there is a breach of a relevant legal restriction or condition. If you ignore planning rules, the enforcing authority can intervene. The fence is different. It required no consent as it only became an obstruction on the Village Green when the Quay became a green. This then gave a right of action to a wide body of organisations including in this case County and other Councils, and others and individuals to apply to various courts for the obstruction on the Village Green to be removed.
ECC also says it has no health and safety role or responsibility. This is not correct. You will decide for yourself what you think about a County Council that arrogantly shows such a lack of concern for the wellbeing of the residents of Mistley and also of the County who so flagrantly dismisses the hopes and expectation of the highest Court in the land.
Why don’t we just take the law into our own hands and take the fence down?
We have always rejected this as a solution. First our case has always been based on the rights conferred on us by the law and any such action would clearly be unlawful. If the perpetrators were identified they would be liable to prosecution for the criminal damage caused with the consequent effects of acquiring a criminal record, a negative effect on their credit rating and their employment prospects. Some others too. No one should undertake such activity and we should not expect anyone to do so for our benefit even if it sounds appealing in moments of enthusiastic and possibly alcohol induced bravado.
There never was a barrier on the quay. Other places do not have one. Do we need one?
The emphasis put on Health and Safety by TWL over the years inevitably results in the acceptance by all of us that there has to be a barrier. But we have no right to install one; if we did TWL would take it down and replace it with another, possibly better “unscalable” fence. The quay is their land, not ours; the people of Mistley have the right to use it for lawful sports and pastimes right up to the vertical face to the river. It is clear that the existing fence makes little or no contribution to Health and Safety and increases the hazard to the public unlike a new fence which will meet or exceed Health and Safety requirements, should attract the support and approach of Essex County Council, the Health and Safety Executive and may even appeal to TWL and will enable the vision of the Supreme Court to be realised for the benefit of all parties.
You can see over there how it is possible to have a reasonable height barrier, curved towards the land to make it more difficult for small people to climb over it but still permitting access from the river over the barrier. It would also give access to the bollards and within the barrier all at a height to allow children to go crabbing and fishermen to fish, ladders to be attached to the quayside to enable access from the river and a life buoy available for use at any time when required not locked away in its own cage. What can be the objection to this? You can see how they look over there.
Why will TWL not talk to us? What is it that makes ECC reluctant to act or even communicate with us?
There can be no reason for TWL or ECC not to install or help with the installation of a secure barrier which will make a positive contribution to the health and safety of the users of quay. A barrier such as this will overcome all the disadvantages of the fence which is currently in place and will be substantial enough to restrain any vehicle suffering hand brake failure on the slope facing the barrier.
What are the advantages and disadvantages of the proposed barrier?
I urge you to reflect on which barrier you would prefer to see in your interest and that of your friends, neighbours and visitors. In addition, if such matters bear any weight in the consideration of TWL, ECC, TDC and HSE , it is not just an improvement from the health and safety point of view, it is not just a greatly improved barrier to allow village green users to carry on with their lawful sports and pastimes it is also a huge aesthetic improvement to the surrounding conservation area and the listed buildings on the quay. A huge improvement to the enjoyment of the quay for all those who use it.
What is the present position of TWL and ECC?
TWL told the media this week: “… we feel they have a responsibility to safeguard anybody working at the port or on this land so hence the fence stays up”.
As I hope you have seen in the course of what I have been saying – THIS IS WRONG. It is fenced because it is no longer a working part of the port and now only used as the village green AND it completely fails as a health and safety barrier.
ECC claim they have no enforcement powers. I have told them this earlier. They do not need them. It is untrue what they say. They failed respond to our letters to them for 10 months and also the further action they claimed we may take was exactly the same as the information we spoon-fed to them months ago. It is not true they are impartial. Anyone who has been subject to an enforcement order would not resent their impartiality. There are special reasons why they have powers to act and will start with an obligation for the wellbeing of residents of the Council. They should, because I have explained that to them use their powers proactively for the benefit of the County’s residents.
What can we all do to help the campaign?
I urge you all please to sign this petition so that the parties involved will understand the strength of local opinion on this issue even after 15 years. The fight is not over yet but we are in sight of the end. ECC, TWL, Health and Safety Executive and TDC can all do their bit by behaving responsibly towards the people of Mistley to get the fence down.
Come and join us this Sunday 1st October at 11.00am - bring family and friends and get the answers to all your questions.
What better way to spend a Sunday afternoon in July than to find and enjoy the Secret Gardens of Mistley and then visit the Mistley Meze Pop up Cafe on our Village Green.
Tickets are £5.00 (children free) and can be bought in the Mistley Kitchen Shop from June or on the day from the gardens.
The Supreme Court today delivered judgement on the challenge by TW Logistics to the registration by Essex County Council of part of the Port of Mistley as a Town and Village Green.
The Court upheld the registration as a Town and Village Green of land which inhabitants of Mistley have used for lawful sports and pastimes (the legal definition of a Town or Village Green). The inhabitants of Mistley now have their village green.
The decision stems from the erection of a fence along the edge of Mistley Quay installed 12 years ago which attempted to prevent the use of the Quay by local residents. Ian Tucker, who lived on the Quay, applied for registration of the quay as a village green. Following a ten-day public inquiry Essex County Council registered the relevant part of the Quay as a Town and Village Green.
TWL challenged registration in the High Court and subsequently, on appeal, in the Court of Appeal and the Supreme Court on the grounds that the registration was incompatible with commercial use of the port and would criminalise many port activities. The Supreme Court ruling confirms existing law and provides that the public activities on the Town and Village Green may co-exist with those of the landowner. The fence on the edge of the Quay will not be removed as a consequence but it is now an unlawful obstruction on the Village Green and steps can, and will, be taken to remove it.
The long drawn-out battle was won with the support of very many residents of Mistley and the local area who will now be able to continue to enjoy use of the Quay as they, and their forebears, have for many years. Success would not have been possible without the support and determination of Essex County Council.
Simon Bullimore, the Chairman of Free the Quay, said: “We are all delighted with the result after such a long battle. The next stage will be the removal of the fence which is now finally established as an obstruction on the village green. We hope that TW Logistics and Mr Parker, who owns the business, will now change his mind and talk to us about an environmentally and aesthetically acceptable form of safety barrier along the quay edge, allowing traditional use of the village green”.
Nancy Bell, who lives on the quay said: “It is such a relief that the registration of the village green has finally been confirmed. The fence went up when my daughter Daisy was a toddler; she is now 14. She has never known anything else on the quay. I am so happy that we can now look forward to enjoying the restoration of the quay to its historic setting”.