Problems with public port access

The recent decision allowing the registration of part of a commercial port as “common land” will not have done anything to allay the nerves of port managers hoping to expand their estates. In TW Logistics Ltd (TWL, the operator) v Essex CC and Anor [2018] EWCA Civ 2172, we learnt how an informal concession allowing public access to/enjoyment of part of the port’s privately-owned land has led to a restriction in how the port is able to utilise and further develop its quayside.

The Port of Mistley on the River Stour in Essex is well-connected to Europe and the English hinterland and handles hundreds of thousands of tonnes of diverse general cargoes including agri-bulks, rock, metals and unitised shipments. It has 500 metres of quay, grain silos, 5,000 square metres of warehousing and, importantly, open storage adjacent to the quay. Being close to the local High Street, parts of the quayside have always been accessible to walkers.

When the UK Health and Safety Executive expressed concern in 2008 about the risk of people falling into the river, a 1.8 metre fence was erected along the quayside. The villagers’ opposition to the lack of free access to the river sparked an application to Essex CC under the Commons Act 2006 to have part of the Port estate registered as a “town and village green” (TVG).

This reminds us that under the Localism Act 2011 in the UK, Parish Councils, community groups and charities can nominate a public or private asset to be registered on the “assets of community value” register. This gives communities the opportunity to collate a bid for an asset when it’s sold on the open market. Land and buildings that could further social wellbeing or social interests (e.g. culture, recreation, sporting) are examples. What a headache this could pose for port estate owners.

Amazingly, in 2014, Essex County Court confirmed part of the quay would be a village green on the basis that “a significant number of inhabitants…indulged, as of right, in lawful sports and pastimes on the land for a period of at least 20 years”.

Review sought

Fearing future restrictions, TWL issued a Judicial Review challenging the decision and applied to the High Court for a reversal based on incompatibility of activities. Mr Justice Barling did not agree and held that there was “sensible and sustained co-existence between the two groups of users”. TWL appealed claiming that the common land designation potentially criminalised their operations under Victorian statutes and that public access had been acceded with implied permission rather than as ‘a right’.

Lord Justice Lewison concluded that the principle of ‘give and take’ enables the operator to continue to use land in the way they did before the TVG designation, and that use is ‘not incompatible’ with recreation. Locals walking onto the site had not disrupted commercial operations and stevedores and drivers of port equipment were mindful of passers-by. Furthermore, there would be no public nuisance resulting from TWL’s lawful right to carry out its cargo handling activities.

This is a warning shot about common land registration, wherever your port is located. Public access to the quayside was never restricted; this was sufficient to allow the registration as a TVG. The undesired outcome has resulted from acquiescence to the public enjoying private property for a sustained period. TWL can carry on as normal but scarily, they will be prohibited from developing the land further and from increasing activities. This is at a time where diversification of services is critical for smaller ports to keep pace with changing market trends.

Give and take is certainly important in an era where there is renewed interest in more accessible and greener port-neighbourhood environments, but ports need to lead communication with a savvy public on any scale of change to infrastructure. However, the elimination of hazards and control of residual risks needs to be in the safety DNA of port managers. Yet, if not constantly managed, with eagle eye focus, a near miss, incident or accident won’t be far away.

Charles Haine is technical director of maritime at WSP.