The application for registration as a village green was first prompted by the action of the port owners, TW Logistics, in erecting Heras fencing along the edge of the quay in 2008. This led locals to bring a challenge to the attempt by the port owners to exclude them from enjoying and accessing the quay, a custom that had gone back centuries.
The quay has sweeping views over the estuary of the River Stour and is a focal point for village life. The Court of Appeal judgment represents a hard-won victory for campaigners.
Birketts’ Partner Nigel Farthing was instrumental in the application for registration of the quay as a village green in 2015, representing the Applicant Ian Tucker at an eight day public inquiry to determine the issue of registration. However, as soon as it was registered the port owners lodged a High Court challenge seeking the removal of the quay from the register of town and village greens. The challenge culminated in a trial in the High Court in July 2016, this time with Birketts’ Partner and Solicitor Advocate Richard Eaton successfully defending the case for continued village green registration.
The latest development saw the port challenge the High Court judgment in the Court of Appeal. The appeal was brought on several grounds; some highly technical. One of the primary arguments advanced for the port was that the consequence of registration would be to deny the port owners lawful on-going use of the quayside. The argument went that that laws protecting village greens would lead the port to commit criminal offences for using it, and in such circumstances registration ought not to be permitted. The Court of Appeal rejected this argument finding the fears of committing offences from ordinary port use were unfounded. Once again the courts have upheld the status of Mistley as a village green. Richard Eaton and Richard Wald (counsel from 39 Essex Chambers) acted as advocates for Ian Tucker (the original village green applicant) representing the interests of the local inhabitants.
Simon Bullimore, chairman of the Mistley Free the Quay group that has supported the village green registration, added: "We are grateful to Birketts for their legal advice and support throughout this dispute. The decision recognises the important role that spaces such as Mistley Quay play in the recreational and leisure pursuits so important to the lives of people who live in the area. Without the sensible encouragement an informed judgement of Nigel Farthing and Richard Eaton I doubt that we would have had the will to continue our fight in the High Court.”
Richard Eaton concluded: “Mistley is a working port and a key issue in the litigation has been the examination of how the law treats the co-existing interests of the landowner and the inhabitants. The decision sheds valuable light on the post registration rights of each, and how they can continue with sensible give and take and common sense."