Case Comment: R (Newhaven Port and Properties Ltd) v East Sussex County Council & Anor  UKSC 7; R (Barkas) v North Yorkshire County Council & Anor  UKSC 31
30 Monday Mar 2015
Two recent decisions of the UKSC have considered the meaning of the phrase “as of right” in the Commons Act 2006, s 15(4)(a). The first, handed down on 21 May 2014, was R (Barkas) v North Yorkshire County Council & Anor  UKSC 31; the second was R (Newhaven Port and Properties Ltd) v East Sussex County Council & Anor  UKSC 7, which was handed down on 25 February 2015.
Under s 15 of the 2006 Act (the relevant provisions of which are set out in the Newhaven Case Preview) any person may apply to register land as a town or village green where a significant number of local people have enjoyed lawful sports and pastimes on that land “as of right” for a period of at least 20 years.
R (Barkas) v North Yorkshire County Council & Anor  UKSC 31
Barkas concerned a playing field in Helredale, Whitby, North Yorkshire, on land owned by Scarborough Borough Council, who maintained the Field as “recreation grounds” pursuant to the Housing Act 1985, s 12(1) and its predecessor statutes. For half a century or more, the Field provided a popular playing ground for the local populace. In October 2007, the Helredale Neighbourhood Council, an unincorporated association of local residents, applied to North Yorkshire County Council to register the Field as a town or village green under s 15 of 2006 Act.
The North Yorkshire County Council refused the registration on the ground that the extensive and extended use of the land, although undisputed, was not “as of right”. Ms Barkas sought judicial review of that decision, which was refused. Her appeals to the Court of Appeal, and thereafter to the Supreme Court, were also unanimously dismissed. The main Supreme Court judgment, written by Lord Neuberger, was supported by a judgment written by Lord Carnwath. Lady Hale, Lord Reed and Lord Hughes concurred in both judgments.
The decision turned on the meaning of “as of right” in s 15(4). As Lord Neuberger explained at para 14:
“… the legal meaning of the expression “as of right” is, somewhat counter-intuitively, almost the converse of “of right” or “by right”. Thus, if a person uses privately owned land “of right” or “by right”, the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is “as of right”, it is without the permission of the landowner, and therefore is not “of right” or “by right”, but is actually carried on as if it were by right – hence “as of right”. The significance of the little word “as” is therefore crucial, and renders the expression “as of right” effectively the antithesis of “of right” or “by right”.
The statutory condition that the use of the land be “as of right” derives from the rules of prescriptive acquisition, which “prevent the disturbance of long-established de facto enjoyment”, as Lord Hoffman put it in R v Oxfordshire County Council, ex p Sunningwell Parish Council  1 AC 335 at p 349. As Lord Hoffman pointed out, a combination of statutes and common law has resulted in such enjoyment having to be 20 years “nec vi, nec clam, nec precario” – not by force, not by stealth, nor by the permission of the owner. In other words, the possibility of prescription arises where the land has been used without express or implied consent from the owner, but without coercion and to the knowledge of the owner. In Barkas and thereafter in Newhaven, the analysis of the Supreme Court applies the rules of acquisitive description by an analogy which derives from the use of the words “as of right” in s 15(4) of the 2006 Act (and its predecessor statutes – see Newhaven, para 91).
The County Council argued that the playing field had always been held for public recreational purposes under s 12(1) of the 1985 Act and its statutory predecessors, with the result that members of the public had always had the statutory right to use the field for recreational purposes. Hence there could be no question of local inhabitants having enjoyed recreational pursuits on the field “as of right”, because they had done so “by right” or “of right” under the statute. Lord Neuberger considered this argument to be:
“as compelling as it is simple. So long as land is held under a provision such as section 21(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land “by right” and not as trespassers, so that no question of user “as of right” can arise.” (paras 20-21)
It followed that the County Council’s refusal to register the field as a village green under s 15 of the 2006 Act had been correctly upheld by the courts below, and the appeal was dismissed.
R (Newhaven Port and Properties Ltd) v East Sussex County Council & ANor  UKSC 7
R (Newhaven Port and Properties Ltd) v East Sussex County Council & Anor  UKSC 7 concerned an area of land, known as West Beach, along the East Sussex foreshore within the operational land of Newhaven Harbour, which has existed since the mid-sixteenth century.
The Newhaven Harbour and Ouse Lower Navigation Act 1847 established harbour trustees with powers to maintain and support the Harbour and associated works. The Newhaven Harbour Improvement Act 1878 transferred the powers of the trustees to the Newhaven Harbour Company, and conferred upon the Company the power to make byelaws in the manner prescribed in the Harbours, Docks and Piers Clauses Act 1847. Byelaws made in 1931 regulated access to the Harbour, and the use of the Harbour for leisure activities. The 1991 Newhaven Order vested the Harbour in Newhaven Port & Properties (“NPP”). As part of the operational land of the Harbour, West Beach is subject to the statutory provisions and the Byelaws.
West Beach is wholly uncovered by water for only a few minutes each day. The area of the beach that is uncovered by water varies with the ebb and flow of the tide. For at least 20 years, local inhabitants have used the uncovered portion of the Beach for lawful recreation. In December 2008, the Newhaven Town Council applied to East Sussex County Council to register West Beach as a town or village green under s 15 of the 2006 Act. Against the objections of NPP, the County Council decided to approve the application. NPP applied for judicial review of the County Council’s decision.
The decisions in the courts below are outlined in the Newhaven Case Preview and are not repeated here. At first instance Ouseley J upheld NPP’s challenge on the ground that registration under s 15 would be incompatible with the statutory purpose for which the land was held by NPP ( EWHC 647;  QB 186 at paras 144 to 148). The Court of Appeal, by a majority, upheld the County Council’s appeal against this decision ( EWCA Civ 276;  QB 186 at pages 241 to 271; the dissenting judgment of Lewison LJ is at pages 271 to 281). The Supreme Court, for the reasons summarised below, allowed the appeal and set aside the order of the Court of Appeal.
Before the Supreme Court, there were three issues, distilled at para 25:
- Whether the public enjoyed an implied licence to use the foreshore and therefore the use was not “as of right”;
- Whether the public enjoyed an implied licence to use the Beach, by virtue of Byelaws permitting and regulating access to the Harbour, including the Beach, so that use of the Beach was “by right” and not “as of right”;
- Whether, in any event, s 15 of the 2006 Act cannot be interpreted so as to enable registration of land as a town or village green if such registration is incompatible with some other statutory function to which the land is to be put.
In the Supreme Court, Lord Neuberger and Lord Hodge gave the leading judgment, with which Lady Hale and Lord Sumption agreed. Lord Carnwath wrote a concurring judgment, in which he expressed reservations about reaching a decision on the third ground, as it was not necessary to do so in order to dispose of the appeal.
The Court took as its starting point the distinction, most recently articulated by the Supreme Court in Barkas, between use “by right” and use “as of right”. The latter “generally connotes user without any right, whether derived from custom or usage, statute, prescription or express or implied permission of the owner” (para 25).
First issue – the nature and extent of public rights over the foreshore
The first issue, which went to the nature and extent of public rights over the foreshore of England and Wales, raised questions of some complexity that did not require resolution in order to decide the case. Hence, although Lord Neuberger gave some consideration to these issues at paras 26 to 51, and Lord Carnwath offered a comparative perspective at paras 105 to 140, their Lordships ultimately declined to decide the first issue, since it was not necessary to do so in order to dispose of the case.
Second issue – use by permission of the Byelaws
On the second issue, the Court considered that the Byelaws by implication gave members of the public permission to use the beach for lawful recreational pursuits, including walking, playing and bathing (paras 60 to 63). The question then was whether, in order for the Byelaws to operate as an effective licence, it was necessary for NPP (and its predecessors) to display or otherwise communicate the Byelaws to members of the public. On this point, the Court pointed out that the Barkas case demonstrates that: “it is not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of the land concerned was permitted in order for their use to be treated as being “by right” rather than “as of right”” (para 69). In Barkas, although there was no communication of a licence, it was held that members of the public were using the field by right (derived from statute). Their Lordships quoted (at para 70) Lord Neuberger’s comment at para 23 of Barkas that:
“Where land is held [by a local authority] for [the statutory] purpose [of recreation], and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct” (and see Lord Carnwath in Barkas at para 65).
At para 71, their Lordships held the two cases to be analogous:
“In our judgment, the position in the present case is indistinguishable from that in Barkas for the purpose of deciding whether the use of the land in questions by members of the public was “as of right”. In this case, as in Barkas, the legal position, binding on both landowner and users of the land, was that there was a public law right, derived from statute, for the public to go onto the land and to use it for recreational purposes, and therefore, in this case, as in Barkas, the recreational use of the land in question by inhabitants of the locality was “by right” and not “as of right”.
Their Lordships therefore agreed with the analysis of Lewison LJ in the Court of Appeal. (The majority, they considered, had reached the contrary conclusion partly based on the reasoning of the House of Lords in R (Beresford) v Sunderland City Council  UKHL 60,  1 AC 889, which reasoning the UKSC had disapproved in the Barkas case – at paras 30 to 49 per Lord Neuberger; paras 69 to 86 per Lord Carnwath.)
Hence the Court held on the second issue that the public enjoyed an implied licence to use the Beach by virtue of Byelaws, so that use of the Beach was “by right” and not “as of right”.
Third issue – statutory incompatibility
The decision of the Court that the appeal of NPP on the second issue should be upheld meant that it was not strictly necessary to go on to consider the third issue. There had, however, been full argument on the question of whether s 15 of the 2006 Act could be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function to which the land was to be put. The Court had formed a clear view that this was an additional ground on which the appeal should be allowed, the reasons for which are set out at paras 75 to 103 of the leading judgment. (Lord Carnwath’s reservations about deciding this point are set out at paras 137 to 139.)
The Court held the question of statutory incompatibility to be one of statutory construction. S 15, said the Court, does not apply to land which has been acquired by a statutory undertaker and which is held for statutory purposes that are inconsistent with its registration as a town or village green. Hence where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes (para 93).
In support of this view, Lord Neuberger invoked the maxim generalia specialibus non derogant – a general provision does not derogate from a special one. In the present case, he said, the existence of specific legislation governing the Harbour is relevant to the interpretation of a generally worded statute such as the 2006 Act (para 93). As to the general value of this maxim and other canons of statutory construction, see Lord Neuberger’s comments at paras 57 to 61 of Cusack v London Borough of Harrow  UKSC 40.
There is, the Court held, an incompatibility between the 2006 Act and the statutory regime which confers harbour powers on NPP to operate a working harbour. NPP is obliged to maintain and support the Harbour and its connected works. To that end, it is empowered to carry out works on the Harbour, including the dredging of the sea bed and the foreshore (para 94). Registration of the Beach as a town or village green would make it a criminal offence to damage the green or interrupt its use and enjoyment as a place for exercise and recreation or to encroach on or interfere with the green (para 95).
Given that Newhaven is a working harbour, it was not necessary for NPP to lead evidence as to its plans for the future of the Harbour – there was a clear incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory functions of NPP. It was apparent, without the need for further evidence, that registration would impede the use of the adjoining quay to moor vessels, would prevent NPP from dredging the Harbour in any way which affected enjoyment of the Beach, or might restrict NPP’s ability to alter the existing breakwater, any or all of which might be required in pursuit of its statutory functions (para 96). The Court therefore held that the 2006 Act cannot operate in respect of the Beach by reason of statutory incompatibility (para 102).
The ultimate conclusion of the Court, summarised at para 103, was that:
“assuming that there is no general common law right for the public to use the foreshore for bathing and associated recreational activities, the user was by permission in the light of the Byelaws, and that in any event the 2006 Act cannot operate by reason of incompatibility with the statutory basis on which NPP’s predecessors acquired the land, and the statutory purposes for which they held, and now NPP holds, that land”.
The decisions in Barkas and Newhaven will not find friends among town and village green campaigners. The Supreme Court did not decide issue 1, and did not expressly rule out the possibility of registration of a beach as a town or village green. Nevertheless, their Lordships’ discussion of the question, and in particular Lord Carnwath’s judgment, appears to indicate that the deckchairs are stacked against such an application succeeding.
Public authorities who are anxious to forestall or resist town and village green campaigners’ applications can find guidance in the reasoning of the Court on issues 2 and 3. For them, it would be prudent to check whether public use of any land they own is pursuant to the specific statutory purposes for which the land is held.