Councils win appeal over registering beach as village green

A beach in East Sussex can be registered as a village green, the Court of Appeal has ruled today by a majority, upholding an appeal by the county and town councils.

The case centred on whether West Beach in Newhaven was registrable as a town or village green under s. 15 of the Commons Act 2006.

The area had been fenced off by Newhaven Port and Properties (NPP). The town council then sought to have it registered as a village green in a bid to have it re-opened to the public.

In the High Court Mr Justice Ouseley had rejected all but one of the arguments against registration advanced by NPP.

The judge did, however, accept 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 statutory powers and duties.

East Sussex County Council, as the registration authority, and Newhaven Town Council appealed against that finding.

NPP opposed that appeal and sought to rely in addition on most of the grounds it had advanced but which had been rejected by Mr Justice Ouseley.

The Court of Appeal in Newhaven Port and Properties Ltd, R (on the application of) v East Sussex County Council & Anor [2013] EWCA Civ 276 overturned the first instance ruling.

Lord Justice Richards agreed with the appellants that the High Court judge’s reasoning on the statutory powers point was seriously flawed.

He said: “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.”

Lord Justice Richards rejected all of NPP’s grounds in its respondent’s notice. Lord Justice Macfarlane agreed.

However, Lord Justice Lewison 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.

Lord Justice Lewison 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 Mr Justice Ouseley.

Simon Hughes, East Sussex County Council's assistant chief executive, said: “We are satisfied that this process is now complete and we look forward to working with Newhaven Port and Properties in the future.” 

Cllr Carla Butler of Newhaven Town Council welcomed the ruling. She said: "I am over the moon that the court has ruled in our favour. We still believe passionately that Newhaven port can be regenerated at the same time as securing leisure access to the sandy beach for the people of Newhaven. This is a victory for people power.”

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

Philip Hoult