Newhaven West Beach gets European ‘Green Flag’

In my post ‘Town and village greens – time and tide waits for no man’ on 27th March I wrote about the Court of Appeal decision in The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council [2013] EWCA Civ 276.

That decision overturned the first instance ruling of Mr Justice Ouseley in certain respects (see R (Newhaven Port & Properties Ltd) v East Sussex County Council [2012] EWHC 647) in effect allowing the registration of the beach as a village green.

Part of that original decision by Mr Justice Ouseley was that s.15(4) of the Commons Act 2006 was not incompatible with Article 1 of the First Protocol of the ECHR (right to peaceful enjoyment of property). This element was also appealed on the basis 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.

The appeal in respect of this point was adjourned to be heard separately pending the outcome of the first appeal but has now been determined by a differently constituted Court of Appeal (Lloyd, Lewison and Gloster LJJ) in R (on the application of Newhaven Port and Properties Ltd) v Secretary of State for Environmental and Rural Affairs and others [2013] EWCA 673 and has upheld Ouseley J’s decision refusing to make a declaration of incompatibility in respect of s.15(4).

The Court accepted the Secretary of State’s argument that the legislation pursued a number of legitimate aims. 

It accepted:

• that the overall purpose of the village green legislation was legitimate;
• that the specific, legitimate purposes of s.15(4) included the clarification of the uncertain legal position prior to enactment of the 2006 Act, and ensured that local inhabitants were not prejudiced by the uncertainty in the pre-enactment law;
• that s.15(4) was proportionate in striking a fair balance between the interests of landowners and the community, noting that landowners had always been in a position to take steps to stop use as of right from accruing over the necessary 20 year period; and 
• that landowners have always been on notice of the threat to their own rights by reason of public use. 

The Argus and The New Haven News report the local reaction to the most recent decision. I rather fear that we may not have heard the end of this matter and that the Supreme Court is in due course going to be called upon to settle things on appeal from the landowner.