Town and village greens – time and tide waits for no man

S.15 of the Commons Act 2006 provides that anyone can make an application to register land as a town or village green where a significant number of local inhabitants have used the land for lawful sports and pastimes for a period of at least 20 years and where certain circumstances apply. S. 61 provides that land includes "land covered by water". 

R (Newhaven Port & Properties Ltd) v East Sussex County Council [2012] EWHC 647 (Admin) concerned a sandy area known as West Beach at Newhaven at the mouth of the River Ouse in East Sussex which was tidal and fully covered by the sea for a significant portion of each day.

East Sussex County Council wanted to register the beach as a town or village green under the Commons Act 2006. There was considerable evidence that the beach had been used by local inhabitants as of right for lawful sports and pastimes for at least twenty years expiring in April 2006. 

The Council recommended that the beach be so registered but Newhaven Port and Properties Limited (NPP), the owner of the beach, objected to the registration and sought a judicial review on the grounds that:

• a tidal beach cannot be registered as a town or village green;
• if it could be so registered, this particular beach was not registrable because of its actual use;
• the use of the beach was regulated by byelaws and therefore public use was by way of licence and not "as of right" as required;
• s.15(4) of the Commons Act 2006 was incompatible with Article 1 of the First Protocol of the ECHR (right to peaceful enjoyment of property); and
• the beach was part of the operational land of the port and subject to the port authority's powers and existing byelaws and consequently registration was incompatible with the port's statutory powers and rights.

The High Court (Ouseley J) quashed the Council's decision to register the beach as a town or village green holding that: 

• the ordinary meaning of the words used by Parliament to define "town or village green" were broad enough to allow a tidal beach to be registered provided that the nature, quality and duration of the recreational user satisfied the statutory test;
• there is no requirement for a registered town or village green, to be "grassy" or "traditional" and the beach was not therefore excluded from registration merely because it was covered in water for much for the day;
• notwithstanding byelaws preventing water-based sports from being conducted from the beach and as such only land-based activities were lawful, those activities which could only be enjoyed for part of the day amounted to the local inhabitants carrying on a lawful sport and pastime for a material period of time;
• the lawful use did not have to be non-stop or even the main or dominant use of the land given that the level and nature of use simply had to be that which, judged objectively, would make a landowner aware that the public were asserting a right;
• use of the foreshore is not subject to a rebuttable presumption that it was by permission of the Crown or its successors in title and there is no reason to hold that rights to use land for sports and pastimes cannot be asserted against the Crown as landowner including rights over the foreshore;
• the mere existence of byelaws did not mean that the beach was regulated and that its use was therefore with permission because there had to be more than acquiescence and there would have to have been an express act by the landowner to prevent the use from being as of right;
• s.15(4) of the Commons Act 2006 was not incompatible with Article 1 of the First Protocol of the ECHR;
• the Inspector at the Public Inquiry dealt with an unusual situation carefully, made the necessary factual findings, grappled with the issues, and produced a clear and reasoned recommendation which dealt with the issues raised; and
• there was an inherent conflict between registration as a village green, the power to make byelaws under the Commons Act 1899, and under the Harbours Docks and Piers Clauses Act 1847 among other statutory powers and if it was reasonably foreseeable that the recreational use that gave rise to registration under the Commons Act 2006 would conflict with and compromise the statutory objects for which the land was held by the port (that is, the operational use of the port), the beach could not be registered as a town or village green.

 

That decision was appealed by both Newhaven Town Council and the County Council in respect of the inherent conflict with statutory objectives point and by NPP in respect of the other points. 

The Court of Appeal (Richards LJ, McFarlane LJ and Lewison LJ) in a reserved judgement to be found at The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council [2013] EWCA Civ 276 overturned the first instance ruling.

Richards LJ agreed with the appellants that Ouseley J’s reasoning on the statutory powers point was seriously flawed. In paragraph 14 he makes clear that “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.

He went on to say (paragraph 29) that while “I do not underestimate the consequences that registration of West Beach as a town or village green may have on the future discharge of NPP’s statutory functions. For the reasons I have given, however, I do not consider those consequences provide a proper ground for holding that the land is not registrable.”

Richards LJ then rejected all of NPP’s grounds in turn.

Macfarlane LJ agreed indicating that (paragraphs 96 and 97) registration as a town or village green being incompatible with NPP's statutory powers and duties is not sustainable for the reasons given by Richards LJ at paragraphs 10 to 29 and that NPP failed, as they did before Ouseley J, to make good their case with respect to grounds (1), (2), (3) and (6) as listed by Richards LJ in paragraph 8.

He did however (paragraph 98) deal with the difference in approach reached in respect of whether the terms of the byelaws establish precarious use, rather than use of the beach as of right and whether the character of a foreshore, of itself, establishes a rebuttable presumption that use is by permission of the Crown or its successors. 

While Richards LJ concluded that NPP had not succeeded in establishing either of these two grounds and that the appeal by the two local authorities must therefore succeed, Lewison LJ formed the contrary opinion to the effect that both grounds, probably in isolation, but certainly in combination, were established with the consequence that public use of this stretch of foreshore has been by permission and not as of right; and therefore holding that the appeal should be dismissed, albeit for reasons that differ from those which prevailed at first instance.

Macfarlane LJ (paragraph 99) however agreed with the judgment of Richards LJ on this point and his conclusion at paragraphs 59 to 61 that the points made by NPP in this regard do not go so far as to establish that use of the foreshore by the public is, or is presumed to be, by permission of the Crown or its successors. 

He then went on to address the difference in respect of the byelaw making point. He thought that the difference between his fellow judges would seem to turn upon whether or not the making of the byelaws (which it is agreed contain an implied revocable permission to use the foreshore) is sufficient, of itself, to establish the necessary degree of communication to members of the public so as to render recreational use of the beach precarious and therefore not as of right. However he agreed with and adopted the approach taken by Richards LJ concluding that the byelaws do not establish that the use during the 20 year period was precarious.

Lewison LJ however, reached a different conclusion on two grounds advanced by NPP in its notice: that the terms of the byelaws established precarious use, rather than use of the beach as of right; and that the character of a foreshore, of itself, established a rebuttable presumption that use was by permission of the Crown or its successors. He took the view that both grounds had been established with the result that public use of the foreshore was by permission and not as of right. He therefore considered that the county and town councils’ appeal should have been dismissed, although for different reasons than the one given by Ouseley J.

He thought (paragraph 104) that it is perfectly true that the way that the town and village green legislation has been interpreted has allowed the registration of parcels of land that are far removed from the Platonic ideal of a village green. Indeed he was clear (paragraph 128) that in his judgment the foreshore is, to some extent, a special case based on a number of reasons as follows:

• The nature of the land is such that it cannot readily be enclosed. It would be wholly impractical to attempt to enclose it on the seaward side; and even on the landward side any attempt would be fraught with difficulty;
• Historically the foreshore has been Crown property (although there are private persons who derive title from the Crown) and the Crown would not, in practice, prevent citizens from resorting to the foreshore for recreational purposes. This has been the case since time immemorial, and in those circumstances it is not unreasonable to presume that the Crown has implicitly licensed such activities;
• Even where the owner of the foreshore does attempt to enforce his strict legal rights, there are serious impediments in obtaining an injunction;
• Although in theory it is possible to prescribe for rights over the foreshore or to establish a customary right, there is no case in the books where a recreational right over the foreshore has been established; and
• It would take very little, having regard to the nature of foreshore and the manner in which it is generally enjoyed, to draw the inference that use is permissive by virtue of an implied licence.

He went on to reject (paragraph 130) the suggestion that the byelaw making power should not be repugnant to the laws of the United Kingdom because this was tantamount to saying that NPP could not lawfully give the public permission to come onto its land.

Furthermore, (paragraph 133) he took the view that it cannot have been the intention of Parliament that bye-laws would cease to be valid or enforceable if the boards (on which they had been published and put up on in order to become binding) were, say, destroyed in a storm; or that the bye-laws would go in and out of a state of validity depending on the physical condition of the boards. Nor can it have been Parliament's intention that if all the boards disappeared for whatever reason, bye-laws would have to be made all over again. 

Given therefore that the byelaws remain valid and binding it followed, he said, that while the byelaws remain valid and binding, they bind both the NPP and also persons within the port in the same way as if they had been contained in a local Act of Parliament and the question, then, is whether the existence of the bye-laws operates so as to defeat the claim that use of the foreshore was use "as of right". 

He considered (paragraph 138) that if an act of communication regarding the making of the bye-laws were necessary it was satisfied once and for all when the bye-laws were publicised in advance of their confirmation and published when confirmed and that no periodic communication to the public is needed for that law to remain effective. He therefore held (paragraph 140) that the use of the foreshore was by permission of the NPP, and was not therefore "use as of right".

However, it is understood that Newhaven Port and Properties have already said they will seek permission to appeal the case to the Supreme Court.

Furthermore, the appeal on the eighth ground relating to whether section 15(4) was incompatible with Article 1 of the First Protocol in that the retrospective operation of the provision which allowed registration based on use that had already ceased constituted an interference with a landowner's property rights had been adjourned. That would be heard separately, pending the outcome of this appeal.

I have also previously written about the Growth and Infrastructure Bill proposals to insert a new s.15A in the Commons Act 2006 to ‘head off’ the alleged abuse of the registration mechanism to stifle unwanted development (see ‘Smoke and mirrors prevail at launch of new Growth and Infrastructure Bill’ reproduced in Local Government Lawyer as ‘The death of localism?’). At the time of writing the Bill is currently undergoing its report stage in the House of Lords (see Growth and Infrastructure Bill).