Beaches and village greens

Supreme Court Main Entrance 03521C press office supplied  146x219The Supreme Court this week handed down its ruling in the Newhaven Beach village green case. George Laurence QC analyses the judgment.

Can a beach be a village green? The Supreme Court has just given a very ambiguous answer to that question. In Newhaven Port and Properties Ltd v East Sussex County Council & Ano [2015] UKSC 7, the question was whether the beach in question should be registered as a green under section 15(4) of the Commons Act 2006. Stripped of technicalities, the appellant landowner NPP argued successfully that the beach should not be registered because (i) the public’s use of it for lawful sports and pastimes had not been, as section 15(4) required, “as of right”; and (ii) in any event, section 15 did not, as a matter of statutory construction, apply to land which had been acquired by a statutory undertaker and was held for statutory purposes which were incompatible with the continuing use of that land for those recreational purposes.[1]

The first of these points depended on an application of the principle that use of land can be “by right” (and so not “as of right”) in certain circumstances even where those using the land are wholly unaware of their entitlement. The entitlement in question arose in this way. Certain unpublished (but nevertheless effective) byelaws, expressly prohibited certain recreational activities. The Supreme Court held that these byelaws thereby impliedly permitted activities which were not prohibited. The Supreme Court so held notwithstanding that none of those who used the beach over 20 years were aware of the byelaws, and so had no knowledge of the fact that, pursuant to the byelaws, they were impliedly authorised to indulge in the recreational activities in question. (It was these activities which had been successfully relied on by the second respondent, Newhaven Town Council, before the Inspector as giving rise to its claim to register the beach as a green).

The Supreme Court did not strictly have to consider the second point at all in view of its decision on the implied permission issue but nevertheless did so. Many readers will find the actual reasoning by which it reached its decision - particularly its reliance on certain Scottish cases decided 100 years ago - extremely hard going. In the Court of Appeal, Richards LJ had demolished the reasoning by which Ouseley J had in effect disapplied section 15. Lord Carnwath at paragraph 137 found “considerable force” in Richards LJ’s judgment. The majority of the Supreme Court held, however, that to register the dock company’s land as a green would potentially interfere with the harbour activities. It is impossible to understand why, if this is enough to disapply section 15, the same is not true of every local authority which owns land for some purpose. The reason given by Lords Neuberger and Hodge is stated at paragraph 101:

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“the ownership of land by a public body such as a local authority which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility”.

To this writer, the obvious retort to that is: “why ever not?”.

However all this may be, the really interesting question about Newhaven (and the first issue which faced the Supreme Court) was, in the event, left undecided. Put simply, but framed in the light of the outcome of the two issues mentioned above which were decided, the unanswered question is this: can a beach which is not owned by a statutory undertaker and is not subject to byelaws which impliedly confer permission to enjoy recreational activities on the beach, be registered after qualifying local people have enjoyed lawful sports and pastimes for 20 years on the beach and have done so openly, peaceably and without permission?

There is nothing about the land comprising a beach which exempts it from registration, even though, as here, for 42% of the time the area is completely covered by water. The Court of Appeal so held and the Supreme Court refused permission to appeal on the point. But the Supreme Court had much more difficulty with a related point, viz whether there was not something special about a beach because of “the manner in which it is generally enjoyed”. This was the fifth of the five reasons given by Lewison LJ in the Court of Appeal for treating the foreshore as a “special case” and the reason why, he thought, “it would take very little to draw the inference that use is permissive by virtue of an implied licence”. See [2014] QB 186 at paragraph 128. Lord Carnwath in the Supreme Court said at paragraph 133 that to treat “those who use beaches for recreation without specific authorisation … as mere trespassers defies common sense”

But does it? The fact that most people who go on to a beach assume that there is no objection to them doing so does not, of course, mean that they are not in law trespassing. The whole foundation of the law of prescription is that the landowner acquiesces in a trespassory activity for such a long time that it hardens into a right. The less the landowner cares what people are doing on his land, the more he acquiesces. The more he acquiesces, the more people will (rightly) assume that he has no objection to them being there and the more likely it is that their use will eventually come to be treated as giving them the right to carry on the activity indefinitely (in the case of village greens the right is only acquired on registration, in the case of easements and public rights of way the right is automatically acquired although in the case of dispute a court decision will be required in order to vindicate it).

It follows that use over time of a beach for recreation is, on the face of it, precisely the kind of trespassory activity which most urgently calls for the use to have what Evershed J in AG v Dyer case [1947] Ch 67 at 86 called a “permanent memorial” in the shape of registration as a green. Another, more radical, way of making the same point would be to say that a beach is such a special kind of case that the public should be regarded as having a right, without more, to enjoy it for swimming and recreation. The point is more radical because if such a right were recognised all the world would have an automatic right to enjoy harmless recreation on the beach, whereas registration of land as a green only results in rights being acquired by local people - the inhabitants of any locality or neighbourhood within a locality. See section 15(2), (3) and (4) of the 2006 Act.

The more radical possibility was not advanced in Newhaven by any of the three parties. The question before the court was whether the first respondent had acted correctly in accepting the Inspector’s advice that the beach should be registered as a green. If there was a universal right of recreation then the answer to this question had to be no, because the use of the beach would have been by right and so not as of right as required by section 15. So it was not in the respondents’ interest so to argue. Neither was it in the interest of the Dock Company, NPP, to do so. It is true that NPP would have won the appeal, and so the immediate battle if such a universal right had been recognised, but it would have lost the war. That is because, if the Supreme Court had overruled the old authorities and held that everybody does have an automatic right to enjoy harmless recreation on a beach, that would have meant that the townspeople of Newhaven would not need to register the beach as a green in order to be entitled to continue to enjoy recreation on it. They would simply have prayed in aid their overriding right. (Whether, if it existed, such a right would have prevailed against the Supreme Court’s views on statutory incompatibility is another matter).

From what has been said above, it can therefore be seen that although the Supreme Court in the end decided not to resolve the issue at all, it nevertheless devoted some time to considering it. It identified three possibilities at paragraph 29 as follows:

“29.  At least where there is no express permission from the owner of the foreshore, there are in principle at least three possible conclusions in relation to the issue of the public’s right to use the foreshore for bathing, by which we mean using the foreshore as access to the sea at low tide, or bathing in the sea over the foreshore at high tide (or a combination of the two), plus associated recreational activities. 

The first is that members of the public have, as a matter of general law and irrespective of the wishes of the owner of the foreshore, the right to use the foreshore for the purpose of bathing, as a matter of general common law.

The second possibility is that the owner of the foreshore is presumed to permit members of the public to use of the foreshore for the purpose of bathing [in which case such use is not as of right and so cannot lead to registration of the foreshore as a green] unless and until the owner communicates a revocation of its implied permission.

The third possibility is that members of the public have no right to use the foreshore for bathing, in which case they are trespassers."

NPP argued for the second of these possibilities. Newhaven Town Council (as applicant for registration) and East Sussex County Council (as registration authority) argued for the third possibility. Lords Neuberger and Hodge (with whom Lady Hale and Lord Sumption agreed) identified difficulties with all three possibilities but were evidently also attracted by all of them for different reasons. In particular, as to the first possibility, it is clear that the justices saw much sense in the idea that there might be, at common law, a general right in the public to bathe in the sea and to gain access to it for that purpose. The basis of such a right would, if not automatic, be grant, custom and usage or prescription. See paragraph 35. The possibility, raised by Lords Neuberger and Hodge at paragraph 37, is that the public at large might have or be able to acquire a general prescriptive right to bathe in the sea. The possibility is particularly intriguing because implicit in it is the idea that the public might by long use by able to acquire a sort of prescriptive right to bathe on the foreshore as described in the first sentence of paragraph 29 quoted above. This, if so, would be indistinguishable from a ius spatiandi in relation to the sea shore. English law has hitherto however traditionally set its face against a general public prescriptive right of recreation being acquired by long use. The judgments in Newhaven appear to recognise just such a possibility.

If on a subsequent occasion such a general right were to be asserted, it would thus be on the basis either that it arose automatically or that those who used the foreshore for bathing would initially do so as trespassers “as otherwise they could not raise a claim by prescription” (at paragraph 38, in the context of considering a dictum of Holroyd J in Blundell v Catherall (1821) 5 B & Ald 268 at p 301 where, as Lords Neuberger and Hodge read him, he appears to contemplate prescriptive acquisition of a right to bathe).

If this possibility were in future to be squarely asserted, it would not necessarily be in the context of a claim to register land as a green, though it might be conjoined with such a claim. The decision of the Supreme Court in Newhaven amounts to this. That where the foreshore in question is not subject to byelaws which confer implied permission to use and/or is not owned by a statutory undertaker for purposes which are incompatible with registration of the foreshore as a green, the landowner faces three possible obstacles to using the land for his own purposes viz (a) that there might be a general common law right of access to the foreshore for bathing (the first possibility in paragraph 29 of the judgments quoted above); or (b) that the general public might by long use as of right be able to acquire a prescriptive right, which the law will recognise, to bathe on the foreshore (as possibly contemplated by Holroyd J himself in Blundell) or (c) that local inhabitants might by 20 years use as of right of the foreshore be able to acquire the right to have the foreshore registered as a green under section 15 Commons Act 2006. (If either (b) or (c) is correct, they fit within the third possibility identified in paragraph 29 of the judgments, because each depends on use initially having been trespassory).

The alternative to each of (a), (b) and (c) above might however be to presume a permission to enjoy the land for recreation unless and until the permission is revoked. This is the second possibility identified in paragraph 29 of the judgments. However, if that were the answer and such licence could be revoked at any time, it would run counter to the expectation that most people have that when they go on to a beach they are doing something they have the right to do which ought not to be capable of being taken away when the activity has been going on a long time. It is little wonder that Lords Neuberger and Hodge described the choice between the three possibilities as “both difficult and important”. Interesting times lie ahead.

George Laurence QC is a barrister at New Square Chambers, Lincoln’s Inn. He has specialised for many years in the law as it relates to access to the countryside. He appeared in the present case (with his colleague Edwin Simpson) for Newhaven Town Council. He has appeared in all of the eight modern cases on village greens to be decided by the House of Lords or Supreme Court since the Sunningwell case in 1999.

[1] There was a further issue which is considered in the fourth and following paragraphs below.

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