High Court judge quashes decision to register beach as village green

A High Court judge has quashed a county council’s decision to register a beach as a village green.

West Beach in Newhaven has been fenced off by Newhaven Ports & Properties since 2008. Newhaven Town Council subsequently sought its registration as a village green in a bid to have it re-opened to the public.

An inspector recommended following an inquiry that the application for registration be accepted. The county council decided in December 2010 to accept that recommendation.

In Newhaven Port and Properties Limited v East Sussex County Council [2012] EWHC 647 Mr Justice Ouseley ruled that West Beach was not excluded from possible registration under the Commons Act 2006.

He said: "I can see no answer to the contention that the ordinary meaning of the words used by Parliament to define 'town or village green' are broad enough to permit the registration of a tidal beach, providing that the nature, quality and duration of the recreational user satisfies the statutory test."

Mr Justice Ouseley added that Parliament had chosen its words, on three separate occasions, so as to exclude any notion of a requirement that the registered green be “grassy” or “traditional”. The fact that the beach was covered in water for part of the day did not prevent its registration either.

However, Mr Justice Ouseley also concluded that registration by the county council was not compatible with the statutory purpose for which the land at West Beach was held by Newhaven Port Authority, namely the running of a port.

“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,” the judge said. “It has no power to give an actual or implied consent to this use, and appearances to the contrary, cannot be taken to have done so.”

Mr Justice Ouseley added: “There are other ways of putting it: rights cannot arise by twenty years user to the likely detriment of the statutory functions pursuant to which the landowner owns the land in the public interest. One group of the public cannot acquire rights against the general public interest measured by the existence of statutory powers which are reasonably foreseeably inconsistent with the rights they assert.”

The judge said that for that reason, no rights had been lawfully acquired or no use of the land had carried on without a necessarily implied permission. The land could not therefore be registered as a village green.

Mr Justice Ouseley said he would have preferred to hold that the land was registrable but that the effect of registration did not prevent the full operation of the port authority’s powers for the proper purposes of the undertaking.

“But that option is not open on the authority of BTC v Westmoreland CC, and there are in any event difficulties as to how it would actually operate under two sets of byelaws,” he said.

The town council expressed disappointment at the ruling, saying that the issue of compatibility with a statutory purpose had been raised at the last minute by the port authority’s legal team after the judicial review closed.

Cllr Carla Butler said: “This is a devastating blow to the morale of people in Newhaven, who have used the beach in exactly the same way as a village green is used for generations.

“NPP has won this stage of the battle on a legal technicality, but even the judge says that he would have preferred to hold that the beach was registrable. In all the years that the public have used the beach there has been no conflict between the operation of the port and the use of the beach – indeed photographic evidence was submitted by the town council in support of its application showing local families playing on the sand whilst a jack-up barge was moored there in the past."

The town council, which said it was taking legal advice on its next move, pointed out that the adverse ruling came despite the judge accepting that it had provided significant evidence of the beach being used by local people for more than 20 years as of right for lawful sports and pastimes.

The Mayor of Newhaven, Cllr Steve Saunders, said the town council strongly supported the port authority’s efforts to regenerate the port and its bid for business from the proposed Rampion wind farm.

“However, we continue to see no reason why the use of the beach by the public should jeopardise this,” he said.

A spokesman for East Sussex County Council said: "We are disappointed with the High Court decision and we will now be looking in detail at the ruling before we can make a decision on how to proceed."

Philip Hoult