Paul Wilmshurst analyses the many issues raised in the recent Court of Appeal case over whether a beach should be registered as a village green.
The Court of Appeal has recently handed down judgement in the interesting case of Newhaven Port and Properties Ltd, R (on the application of) v East Sussex County Council & Anor  EWCA Civ. The case concerns the registration of a beach as a new town or village green pursuant to the Commons Act 2006.
The beach is in the ownership of Newhaven Port and Properties (“the Port authority), a statutory undertaker, with responsibility for operating the port. An Inspector had, after a public inquiry, recommended the registration of the beach.
After the Registration Authority had implemented this recommendation the Port Authority brought judicial review proceedings to challenge the decision because it considered that the registration would significantly interfere with the future running and possible expansion of the port.
At first instance, Ouseley J had reversed the decision of the Registration Authority on a single point of law. In short, the judge held that the registration of the beach, being part of the operational land of the port, was subject to the Port Authority’s byelaw making powers and existing byelaws and as such registration was incompatible with its statutory powers. The beach was accordingly held outside the scope of the Commons Act 2006.
The Court of Appeal has now, on a 2-1 majority, reversed this decision. It was however held by all that Ouseley J made an error of law in respect of the alleged incompatibility with statutory functions.
There are two further points that must be made by way of explanation. First, the Port Authority re-argued a number of issues that it had raised at first instance. Second, the Court of Appeal reserved one of these issues, concerning human rights, to a further hearing: the Port Authority contend that there is an incompatibility between s.15(4) of the Commons Act 2006 and article 1 of protocol 1 to the European Convention on Human Rights. That sub-section contains that contains a five-year grace period that applies where qualifying user had ended prior the coming into force of the Commons Act 2006.
This article will address the issues were dealt with in the judgement.
Issue 1: Incompatibility with statutory functions
Many readers will not be surprised by the overturning of Ouseley J’s judgement where he had held: “Newhaven Port cannot permit the use of this land as of right for recreational purposes because it is reasonably foreseeable that that would conflict with its statutory functions.”
Lord Justice Richards, with whom the others agreed, held that this reasoning must be regarded as “seriously flawed.” He continued to say that “unlike the law relating to public highways and private rights of way, registration as a town or village green does not depend on actual or presumed grant or on actual or implied dedication” and that “it simply makes no sense to talk in terms of the landowner giving permission for use as of right.” It is an essential element of user as of right that the user has been without permission, so that where a landowner lacks a capacity to grant permission this cannot prevent the registration of the land. Although, the Port Authority tried to uphold the judge’s decision the Court of Appeal’s decision must be seen, it is suggested, as being consistent with previous authorities.
Lord Justice Richards noted that Ouseley J had been concerned with the acquisition of rights “against the public interest” but that Parliament had not given land in the control of public bodies or those with public functions any exemption from registration. If Ouseley J’s judgement had been upheld no doubt a number of local authorities would have sought to contend that where it was seeking to exercise a public function – i.e. the construction of a housing estate – that the relevant land could not be registered as to do so would conflict with statutory functions. Such an argument is not possible after this judgement.
Issue 2: Whether a beach can be a village green
It was the position of the Port Authority that the Court of Appeal should hold that there is a requirement for a village green to be green and grassy. This it was suggested ought to be read into s.15 of the Commons Act 2006. The court was urged to disregard the obiter dicta of the House of Lords in the Trap Grounds case that suggested that there was no such requirement.
The Court of Appeal was unwilling to depart from what was said in Trap Grounds for several reasons. First, the Trap Grounds case had considered the meaning of “village green” under s.22 of the Commons Registration Act 1965 and not the current s.15 of the Commons Act 2006. In the later provision it was clear, Richards LJ held, that registration simply depended upon the statutory criteria being met. Second, the Bill that lead to s.15 of the Commons Act 2006 was going through Parliament at the time of the decision in Trap Grounds and their Lordships had been very clear in saying that if Parliament disagreed with their obiter remarks then it had the opportunity to legislate to the contrary: no such opportunity was taken.
It is also to be noted, although not mentioned by the Court of Appeal, that there is no “character” provision to be found in the amendments currently before Parliament. Although originally suggested in a consultation document the writer understands that many Registration Authorities had said, when consulted, that it would be impracticable to apply and would lead to further litigation.
Issue 3: Whether registration is precluded by the fact that the land used had no fixed boundary
The arguments put forward under this head were essentially that although there was a fixed boundary in the application, the state of the tides, the seaward boundary, the mean low water mark and the difference between the low water Neap and mean low water Spring would mean that the boundary of the “recreational area on the ground” would be constantly changing and over time would change potentially greatly.
At first instance Ouseley J had said that “Fixing [the line] line on a map could not lead to the registration of any land over which lawful recreational use did not occur” and that although there might be areas beyond the registered green that were used for recreation but not registered, this did not give rise to a legal objection to other parts of the beach being registered. The Court of Appeal simply upheld the judge’s analysis and did not comment in any greater detail. Richards LJ said that the matter did not “merit fuller analysis.”
Issue 4: Whether use of the foreshore is subject to the rebuttable presumption that it is by the permission of the Crown or its successors in title
The argument that use of the foreshore is, without more, always permissive was also re-argued by the Port Authority despite Ouseley J having dismissed it. On this issue, Richards LJ (with whom McFarlane LJ) agreed held that there was no authority to support this argument. He said that the cases only established that “there is no general common law right for the public to pass over the foreshore for the purpose of bathing, shooting wild birds… or other recreational activities.” Furthermore he held that that the previously decided case were all on the basis that the Crown had refrained from restraining harmless activity, where it might have chosen to do so, and that explanation was “more consistent with tolerance in the sense of acquiescence than with implied permission.”
In a dissenting judgement on this point Lewison LJ held that what his colleagues had held to be tolerance could equally be said to be an implied permission in light of the particularly unique circumstances of the foreshore. These circumstances included for example, the fact that the foreshore had been held by the Crown since time immemorial and that it was relatively difficult, in practical terms, for a landowner to obtain an injunction restraining use. Furthermore, Lewison LJ held, it would take very little further, given the circumstances, to imply a permission.
Issue 5: Whether this beach was registerable on a lawful analysis of the facts relating to its use
The Port Authority also re-argued the point that the Inspector had misunderstood the evidence and had come to illogical conclusion that the whole of the beach had been used for lawful sports and pastimes in circumstances where much of it was unavailable for most of the day by virtue of being covered by water.
The Court of Appeal gave reasonably short shrift to this point and upheld Ouseley’s finding: this relied on drawing an analogy between the beach and the Trap Grounds case where only 25% on the land was accessible but the whole of it was registered. The judgement serves to reinforce the point that it not necessary for the whole of an application land to have been used 24/7/365 in order to qualify for registration.
Issue 6: Whether the byelaws rendered use of the land precarious and not as of right
The relevance of the byelaws that were imposed on the beach were a matter given serious attention by the Court of Appeal with large discussion of the relevant caselaw. The byelaws made, it was found by the Inspector, a limited class of activity (including swimming in the sea) unlawful. However, it was found as a fact that during the 20-year period the byelaws were not published and nothing was done so as to communicate their existence to the public.
Richards LJ (with whom McFarlane agreed) upheld Ouseley J’s judgement that the absence of communication was fatal to the Port Authority’s case. They both accepted, it appears, that the wording of the byelaws was such as to grant an implied revocable license to users. However, emphasis was put on what was said in Beresford about the necessity for some kind of overt landowner action in terms of making user permissive. In the circumstances, it was not enough for the Port Authority to sit back and not communicate this permission to the users.
Lewison LJ disagreed on this issue on the narrow basis that he thought that it was adequate for a byelaw be in force and there was no requirement for further communication. In reaching this conclusion he pointed to i) the status of byelaws as the equivalent of a Local Act of Parliament; ii) that it surely cannot have been the intention of Parliament to say that a byelaw was not valid and enforceable simply because the boards on which it were published had been damaged or knocked down and iii) the fact that in the recent Barkas litigation there was no hint, in the decision of the Court of Appeal, that the local authority had to communicate the fact that it held the land for recreational purposes.
Issue 7: Whether lack of a right of access precluded use of the land as of right
It was a remarkable fact that there was no public right of access or way leading to the beach entered onto the definitive plan at the time the Registration Authority registered it. It was suggested that that necessarily made use of the beach by permission. Although the Court of Appeal agreed (with the judge at first instance) that a lack of access might be relevant to the question of qualifying user, there was in this case ample evidence that the beach had been used as of right and accordingly i) whether or not there was a right of access for the public was best left to the definitive map modification process and ii) the uncertainty about the existence of such a way did not constitute a valid reason to delay making the decision to register the beach.
This decision of the Court of Appeal considered a whole raft of issues. That the basis on which the first instance judge overturned the registration has been rejected comes as no surprise. However, what is apparent is that there is a real debate to be had on the issues that Lewison LJ has disagreed with his colleagues on. In particular, the byelaw issue is of most interest to practitioners. Lewison LJ refers to the recent Barkas litigation in support of his judgement and it will remain to be seen to what extent the principles this case can be applied to land in the local authority ownership.