Free The Quay
- Thread starter MikeBz
- Start date
rudolph_hart
Well-Known Member
That is excellent news. Hats off to all who fought for this. :encouragement:
sailorman
Well-Known Member
Fantastic, well done all those that fought this. Power to the People
Next is the proposed mussel fishery in the Stour
Next is the proposed mussel fishery in the Stour
Cantata
Well-Known Member
Really excellent news.
Tam Lin
Well-Known Member
Used to live near there when it all started. Must admit that I had forgotten about it but well done to all who fought!
jant
Well-Known Member
brilliant news
Jan Harber
Well-Known Member
A good result...thanks to the persistence of a dogged band of local people who didn't give up.
What a shame it had to take so long.
What a shame it had to take so long.
chinita
Well-Known Member
Great news.
I hope Trent Wharfage face the mother of all legal bills!
I hope Trent Wharfage face the mother of all legal bills!
LittleSister
Well-Known Member
Brilliant news!
Well done to all involved in the fight.
I intend to visit as soon as the boat's back in the water.
Well done to all involved in the fight.
I intend to visit as soon as the boat's back in the water.
Cantata
Well-Known Member
Why does the press report only say the fence 'could' finally come down? Do the owners have some means of appeal?
PeterWright
Well-Known Member
Sadly Dick, from my limited understanding of our arcane legal system, a High Court Ruling may be further challenged in the Court of Appeal and then that judgement may be challenged in the Supreme Court, which took over this function from their Lordships a few years ago.
However, for an appeal to be heard the apellant must first be granted leave to appeal, I'm unclear on the rules for this - perhaps some legally minded member of the forum would enlighten us and even offer a view on whether TW are likely to be granted such leave.
Peter
However, for an appeal to be heard the apellant must first be granted leave to appeal, I'm unclear on the rules for this - perhaps some legally minded member of the forum would enlighten us and even offer a view on whether TW are likely to be granted such leave.
Peter
Leighb
Well-Known Member
There is also the possibility that the owners will just ignore the ruling. Am not sure what sanctions would/could be applied??
Poecheng
Well-Known Member
Skim read the judgment which is quite long.
Barling J is very experienced and the legal issues do not seem to be in dispute therefore the chance of misdirecting himself is slight. Doesn't look to me like it is naturally appealable - the test for leave to appeal is quite high.
PaulRainbow
Well-Known Member
Be a shame if a large chain with a hook on the end of it fell out of the back of a big 4x4 and got caught up in the fence.
Poecheng
Well-Known Member
The fencing of the quay was a response to HSE concerns about falling over the edge.
The H&S concerns do not go away because it is a village green but there has to be found some means of co-existence so that the Co. is not in breach of its statutory duties and the public can enjoy the area. Not an easy mix and any accident will bring about a strong response. Here is how the judgment dealt with the future of the fencing.
The H&S concerns do not go away because it is a village green but there has to be found some means of co-existence so that the Co. is not in breach of its statutory duties and the public can enjoy the area. Not an easy mix and any accident will bring about a strong response. Here is how the judgment dealt with the future of the fencing.
- Nor do I consider that the fencing of the water's edge by TWL, following the threat of enforcement action by HSE, has any real bearing on the issue before me, save that it is the act which rendered inhabitants' use of that part of the Land "contentious", and therefore marked the end of the qualifying period and the start of the two year period for applying for registration as a TVG. TWL argue that if the registration is maintained there will be pressure from inhabitants, and possibly even litigation, to compel removal of the fence. It is not difficult to see why the existing (and admittedly temporary) fence would be regarded as unattractive, not least from an aesthetic point of view. However, I do not understand HSE to have indicated that only a fence of specifically this construction and dimensions would be capable of allaying their concerns. One would expect that, if the registration is maintained, a solution acceptable to all and which respects the locals' rights at the water's edge, would be achieved. I see no reason why that would not be possible. As Mr Eaton stated in his submissions, it simply requires a fence that performs a safety function without making the lawful activities of recreational use impossible. For example, it would surely be easy to crab over or through a fence or guard rail of appropriate height and construction. As to the likely outcome in the event of litigation to compel the removal of any kind of fencing, I do not propose to speculate except to say that it would be surprising if a civil court were to grant a discretionary remedy to counteract a lawful and enforceable requirement of the HSE.
PeterWright
Well-Known Member
Thank you, Poecheng for your learned clarification of the position. It is particularly interesting that Barling J views the HSE'S requirement as lawful and enforceable. There was an issue some years ago of a safety authority, following an accident in a marina, proposing a requirement that a fence be built around the edge of all pontoons and fingers. Fortunately, they had the good sense to consult with the marina owners before issuing the requirement. When it was pointed out that the purpose of marina pontoons is to enable craft to Moor up and cast off in reasonable safety and asked how the fence would improve the safety of that activity, they abandoned the idea.
As I understand it, the design purpose of a Quay is to permit craft of moor/cast off and load/unload in reasonable safety. I do not know of a dockside with a fence along it (other than at Mistley). Indeed, the UK has hundreds of miles of canals with unfenced towpaths in use as public footpaths. As a layman in matters legal, not having seen the wording of he HSE requirement (improvement notice?) it seems to me that the it could be challenged. In my working life, despite the view presented by the press, I found HSE Inspectors to be reasonable people interested solely in reducing the risk of harm to people.
So, it could be that an alternative to the fence could be agreed with the HSE, but TWL, as the body faced with their requirement, have not sought to do so.
My personal perception of the fence is that TWL saw it as a means of bringing an end to the custom of yotties mooring alongside the Quay, which they could blame on the HSE. It therefore suited them not to seek HSE agreement to some alternative means of improving safety. Of course, this view may just be down to me being a yottie.
As I understand it, the design purpose of a Quay is to permit craft of moor/cast off and load/unload in reasonable safety. I do not know of a dockside with a fence along it (other than at Mistley). Indeed, the UK has hundreds of miles of canals with unfenced towpaths in use as public footpaths. As a layman in matters legal, not having seen the wording of he HSE requirement (improvement notice?) it seems to me that the it could be challenged. In my working life, despite the view presented by the press, I found HSE Inspectors to be reasonable people interested solely in reducing the risk of harm to people.
So, it could be that an alternative to the fence could be agreed with the HSE, but TWL, as the body faced with their requirement, have not sought to do so.
My personal perception of the fence is that TWL saw it as a means of bringing an end to the custom of yotties mooring alongside the Quay, which they could blame on the HSE. It therefore suited them not to seek HSE agreement to some alternative means of improving safety. Of course, this view may just be down to me being a yottie.
Poecheng
Well-Known Member
Peter,
The judgment is here http://www.bailii.org/ew/cases/EWHC/Ch/2017/185.html
Agree with you about the HSE and have a good in-depth knowledge of how they work/think and that they are very sensible and reasonable.
A quay - especially one where there is vehicular transport and people by reason of it being a village green - creates a difficult safety environment where ordinary principles will have to 'give'. The test always is 'reasonable practicability' and if you cannot separate people and traffic (the ideal in workplace transport situations) and you cannot put designated walkways (because the whole is a village green), you have to ensure that the traffic goes slow and can see people at all times, if needs be with banksman.
Agree about blaming the HSE (your last paragraph). Even an Improvement Notice was served (and searching the judgment shows it was not) it does not set out the means to comply; it only sets out the area where the employer is failing. So there is no chance at all it specified a very large fence on the very edge of the quay. As you say, there are no other quays/docks with such fencing and, whilst that would not necessarily be determinative of what was done here (it is no real defence to say everyone else is crap) , it would have a very large effect on what was being done since it is evidence of what is reasonably practicable.
The paragraphs re HSE seem to be at about §92- and speak of coming to sensible conclusions about separation of people from traffic (standard stuff in any workplace - see how they do it at the local supermarket) and making sure people don't fall off the edge. So here, instead of putting pedestrian walkways (paint on tarmac) and some warning signs about traffic and warning signs about the edge (perhaps painting a red line 1m away from the edge) they barricaded the quay. That did nothing to separate pedestrians and traffic and yet triggered the village green application ! So, at paragraph 94, it states the intervention of the HSE was the immediate cause of TWL's decision to fence off the water's edge at Allen's Quay in mid-September 2008, that is not the same as saying their decision to fence it off was justifiable.
There is a further passage which states "a further [HSE] letter of 17 August 2005, reiterating the company's duty to ensure public safety on the port, including the need to consider "whether prohibiting pedestrian access/mooring in particular, or all, areas is required…"
This is a bit enigmatic since it is not clear whether HSE are hinting they need to consider doing this or whether the company have said they are going to do it and HSE are saying they should consider whether it is necessary.
Still, what is clear is that the company's response - fencing off the quayside - is not a reasonable response to the statutory requirements and that is all they are required to do. They should have done something reasonable and tell HSE they have thought about it and this is their solution. Only in rare circs - often when the employer hasn't got a clue about what they are doing - will the HSE carry on with an improvement notice.
The judgment is here http://www.bailii.org/ew/cases/EWHC/Ch/2017/185.html
Agree with you about the HSE and have a good in-depth knowledge of how they work/think and that they are very sensible and reasonable.
A quay - especially one where there is vehicular transport and people by reason of it being a village green - creates a difficult safety environment where ordinary principles will have to 'give'. The test always is 'reasonable practicability' and if you cannot separate people and traffic (the ideal in workplace transport situations) and you cannot put designated walkways (because the whole is a village green), you have to ensure that the traffic goes slow and can see people at all times, if needs be with banksman.
Agree about blaming the HSE (your last paragraph). Even an Improvement Notice was served (and searching the judgment shows it was not) it does not set out the means to comply; it only sets out the area where the employer is failing. So there is no chance at all it specified a very large fence on the very edge of the quay. As you say, there are no other quays/docks with such fencing and, whilst that would not necessarily be determinative of what was done here (it is no real defence to say everyone else is crap) , it would have a very large effect on what was being done since it is evidence of what is reasonably practicable.
The paragraphs re HSE seem to be at about §92- and speak of coming to sensible conclusions about separation of people from traffic (standard stuff in any workplace - see how they do it at the local supermarket) and making sure people don't fall off the edge. So here, instead of putting pedestrian walkways (paint on tarmac) and some warning signs about traffic and warning signs about the edge (perhaps painting a red line 1m away from the edge) they barricaded the quay. That did nothing to separate pedestrians and traffic and yet triggered the village green application ! So, at paragraph 94, it states the intervention of the HSE was the immediate cause of TWL's decision to fence off the water's edge at Allen's Quay in mid-September 2008, that is not the same as saying their decision to fence it off was justifiable.
There is a further passage which states "a further [HSE] letter of 17 August 2005, reiterating the company's duty to ensure public safety on the port, including the need to consider "whether prohibiting pedestrian access/mooring in particular, or all, areas is required…"
This is a bit enigmatic since it is not clear whether HSE are hinting they need to consider doing this or whether the company have said they are going to do it and HSE are saying they should consider whether it is necessary.
Still, what is clear is that the company's response - fencing off the quayside - is not a reasonable response to the statutory requirements and that is all they are required to do. They should have done something reasonable and tell HSE they have thought about it and this is their solution. Only in rare circs - often when the employer hasn't got a clue about what they are doing - will the HSE carry on with an improvement notice.
Tomahawk
Well-Known Member
I have no time for NIMBY groups who are all mouth and no money.
If peeps want to keep the quay as a working quay... simply put together a group, raise the cash and buy it. The owners want to develop the land. They will sell because selling is what they want to do.
So you have only to offer a price that will satisfy as a development alternative and it's yours. OK, you will have to offer a price that compensates for the lost profit. But the owners don't have to raise any capital to develop the site so the offer price can reflect the guaranteed sale and reduction of risk.
If peeps want to keep the quay as a working quay... simply put together a group, raise the cash and buy it. The owners want to develop the land. They will sell because selling is what they want to do.
So you have only to offer a price that will satisfy as a development alternative and it's yours. OK, you will have to offer a price that compensates for the lost profit. But the owners don't have to raise any capital to develop the site so the offer price can reflect the guaranteed sale and reduction of risk.
PaulRainbow
Well-Known Member
Why would anyone want to buy the quay if it's a village green ? It cannot be developed, as such.
richardh10
Well-Known Member
Maybe take the HSE on a trip to Dartmouth! Hoards of people in the summer, and nobody seems to fall in
