UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

Introduction

West Beach is the rather optimistic name given to an area of land within the Port of Newhaven which is entirely covered by water for 42% of the full tidal cycle. It is wholly uncovered 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 each day. The uncovered parts have for many years been used by local inhabitants for exercise, dog-walking and other lawful recreation. On Monday 3 and Tuesday 4 November 2014, the Supreme Court heard argument as to whether the decision of East Sussex County Council to register West Beach as a town or village green under the Commons Act 2006, s 15 was lawful.

In December 2008 Newhaven Town Council applied to the East Sussex County Council for registration of West Beach as a town or village green under the Commons Act 2006, s 15. The application was supported by considerable evidence that local inhabitants had, until April 2006, used the beach without hindrance for lawful sports and pastimes for at least 20 years. In April 2006, the owner of the Port, the Claimant – Newhaven Port & Properties (NPP) – fenced off public access to West Beach.

NPP’s objection to the application for registration of the Beach under section 15 did not prevail, and in December 2010 the County Council decided to approve the application. NPP challenged the decision by judicial review, with the consequence that registration has not yet been effected.

Legislation

The Commons Act 2006, s 15, so far as material to the case, provides as follows:

“Registration of Greens

• Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies . . . .

(4) This subsection applies . . . where –

(a) a significant number of the inhabitants of any locality, or any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the commencement of this section; and

(c) the application is made within a period of five years beginning with the cessation referred to in paragraph (b).”

S 61(1) of the Act makes it clear that “land” includes land covered by water.

The decision at first instance

NPP sought judicial review of the County Council’s decision on a range of grounds, only one of which was upheld at first instance. Ouseley J was persuaded that registration under s 15 of the 2006 Act would not be compatible with the statutory purpose for which the land is held by NPP ([2012] EWHC 647 (Admin)). He accepted that West Beach was part of the operational land of the port, and was subject to the by-law making powers of Newhaven Port as harbour authority. The court accepted that it was reasonably foreseeable that a conflict would in the future arise between the NPP’s plans for the operation of the port and the recreational use of the beach as of right by local inhabitants.

Ouseley J pointed out at paragraph 147 that the substance of the point could be expressed in a number of ways, the common essence of which was that, as a matter of law, Newhaven Port could not permit the use of the land as of right for recreational purposes and could not be taken to have done so.

The Court of Appeal decision

The County Council appealed against Ouseley J’s decision on this ground; the NPP appealed against his rejection of the other grounds.

The Court of Appeal ([2013 EWCA Civ 276; [2014] QB 186)) allowed the appeal, with Lewison LJ dissenting in the result (he would have upheld the judicial review, albeit on a different ground from that upheld at first instance).

Richards LJ looked first at the ground upheld by Ouseley J, to the effect that since West Beach was part of the operational land of the port and was subject to NPP’s byelaw making powers and the existing byelaws, registration was incompatible with NPP’s existing powers and duties. Richards LJ considered Ouseley J’s approach to this ground, encapsulated at paragraphs 143 to 148 of his judgment, to be seriously flawed. He pointed out that unlike the law relating to public highways and private rights of way, registration as a town or village green does not depend on the actual or presumed grant of rights. It depends on use of a specified character over a specified period. Hence the landowner’s capacity to grant rights over the land is irrelevant. It was moreover a contradiction in terms to talk about the landowner’s capacity to give consent or permission for use “as of right”, since “as of right” by definition meant “nec precario”, without the licence of the landowner. As the Court put it at paragraph 14 “Since absence of permission is an essential condition of the use on which registration as a town or village green is based, the fact that the landowner lacks capacity or power to give permission cannot operate to defeat such registration”

Having unanimously found that NPP’s claim should not have been upheld on this ground, it became necessary for the Court of Appeal to consider the other grounds on which NPP had attacked the County Council’s decision, and against the rejection of which NPP now appealed. These were, in summary:

• (1) On a proper construction of the Commons Act 2006, a tidal beach cannot be a town or village green;
• (2) In any event, the West Beach was not registrable on a lawful analysis of the facts relating to its actual use
• (3) Registration is precluded where the land (or any part of it) has no fixed boundary (in this case due to the effect of the tides);
• (4) The effect of the existing byelaws rendered use of the land precarious, and hence not “as of right”
• (5) Use of the foreshore is subject to the rebuttable presumption that it is by permission of the Crown or its successors in title;
• (6) Because members of the public had no right of access to the beach, their use of the beach could not have been “as of right”.

(The final ground of challenge, also subject to appeal, was that the Commons Act 2006, s 15(4) is incompatible with Article 1 of Protocol 1 of the Convention; but this issue was adjourned to be heard separately should the need arise. )

Richards, McFarlane and Lewison LJJ unanimously upheld Ouseley J’s rejection of grounds (1) to (2), (3) and (6). Richards and McFarlane LJJ also agreed with Ouseley J that grounds (4) and (5) should be rejected, Lewison LJ parted company with the majority on  grounds (4) and (5) and would therefore have dismissed the County Council’s appeal, albeit on different grounds from that adopted by Ouseley J.

Lewison LJ considered that, properly analysed, use of the foreshore is permissive, by virtue of an implied licence from the Crown or its successors in title. According to his judgment, even if this were not an independent reason for concluding that use of the foreshore was in this case precario, it provided the context in which the byelaws should be interpreted. The byelaws were properly made and published in 1931 under section 88 of the Harbours, Docks and Piers Clauses Act 1847. He therefore concluded that the appeal of the County Council should be allowed, and the cross-appeals of the NPP dismissed. They remained valid and binding, and retained the force of local law. They included byelaws which permitted and regulated use of West Beach for recreational purposes; hence as matter of fact the port authority consented to the use of the Beach for recreational activities. Lewison LJ considered that use of the beach therefore occurred by virtue of a grant of permission, and not as of right. The byelaws having been properly made and communicated at the time they were made, no subsequent or ongoing act of communication was necessary – it was not necessary to establish specific publication within the 20 year period relevant under s 15(4)(a) of the 2006 Act. Lewison LJ considered therefore that use of the foreshore was by permission of the port authority, and was not therefore “use as of right” for the purposes of s 15.

The Supreme Court of Appeal allowed the application of NPP for permission to appeal. The appeal was heard on Monday 3 and Tuesday 4 November 2014 by Lord Neuberger, Lady Hale, Lord Sumption, Lord Carnwath and Lord Hodge.