TVG registration and the ECHR right to property

RCJ portrait 146x219The Court of Appeal has upheld the compatibility of part of the town and village green registration scheme with the ECHR right to property (Article 1 of the First Protocol). Tim Buley explains why.

In R (Newhaven Port and Properties Ltd) v Secretary of State for Environmental and Rural Affairs [2013] EWCA 673 the Court of Appeal (Lloyd, Lewison and Gloster LJJ) has given judgment upholding Ouseley J, at first instance ([2012] EWHC 647 (Admin)), in refusing to make a declaration of incompatibility in respect of section 15(4) of the Commons Act 2006.

Under the 2006 Act, land can be registered as a town or village green if it is land on which inhabitants of any locality have indulged in lawful sports and pastimes as a matter of right for not less than 20 years. Section 15(4) provides that land can still be registered where such use ceased before the 2006 Act came into force (in April 2007), so far as this is done within five years beginning with the cessation of the use.

The case concerned an application to register land at West Beach in Newhaven as a village green. The use of the land was brought to an end by the landowner (namely Newhaven Port) in April 2006, before the 2006 Act came into force. In due course, following a hearing before an Inspector, East Sussex County Council decided that the beach should be registered as a village green. Ouseley J held that the registration should be quashed on domestic law grounds but the Court of Appeal, by a majority, overturned that decision ([2013] EWCA Civ 276). 

In rejecting the Port’s argument that the retrospective nature of section 15(4) breached A1P1, the Court of Appeal 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, and also accepted that the specific, legitimate purposes of section 15(4) included the clarification of the uncertain legal position prior to enactment of the 2006 Act, and ensuring that local inhabitants were not prejudiced by the uncertainty in the pre-enactment law.

It also accepted that section 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.

On the critical question of the balance struck by section 15(4) itself, the court continued:

"68. ... it is not possible simply to compare the two-year period of grace allowed under section 15 (3) and the five-year period of grace allowed under section 15 (4) as if both sub-sections dealt with the same thing. This critical point was overlooked both in the court below and in the submissions that Mr George made to this court. As Mr Buley, appearing for the Secretary of State, put it section 15 (3) is not an analogue for section 15 (4).
...


70. Fifth, this critical difference also disposes of Mr George's complaint that there was no transitional period suspending the retrospective effect of section 15 (4). As Mr Buley submitted, given that section 15 (4) permitted a landowner to terminate use as of right simply by giving permission for its continuation, a transitional provision of the kind suggested by Mr George would have defeated its whole purpose. In addition, as noted, by the time that the Port barred access to the beach the draft legislation was in substantially the same form as the eventual enactment. So the Port cannot have been lulled into any false sense of security: ..."

Tim Buley is a barrister at Landmark Chambers. He appeared for the Respondent Secretary of State. David Forsdick, also of Landmark, had appeared for the Secretary of State before Ouseley J but was not available for the Court of Appeal hearing).