There was bad news and worse news for village green campaigners in the long UK Supreme Court judgment in R (Newhaven Port & Properties Ltd) v East Sussex County Council. The council and locals have lost the use of West Beach on the Sussex coast as the local port authority seeks to develop the port. The worse news is that the court has sought to close off all hope of turning beaches into village greens to protect them from development.
The reasons for rejecting the Newhaven village green claim are complex and rather narrow – though they will stymie many village green claims against public authorities or companies acting on their behalf with statutory duties and powers.
But the Supreme Court justices also allowed themselves free rein to preempt any wider bathing beach claims that fall outside the limited Newhaven definitions. Although they didn’t come to a final conclusion on this, Lord Carnwath did much of the spadework that would suggest village green applications on beaches would not be entertained. Consideration of the wider points will require another post at some time. Here the specifics of Newhaven are examined.
The Supreme Court case 2015
East Sussex County Council decided to register West Beach as a “town or village green” under the Commons Act 2006. Such registration gives certain planning protections to land and has been used to prevent development. Anyone can apply for registration for land where (according to Section 15(2) the Act)
“a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years [the prescription period]; and (b) they continue to do so at the time of the application.”
Crucially “as of right” means without specific permission from the owner: “nec vi, nec clam, nec precario” (not by force, nor stealth, nor the licence of the owner – precario meaning a permission that can be easily withdrawn). In April 2006, before the Act came into force, the owner of the beach, Newhaven Port and Properties Ltd (NPP), a statutory port authority, fenced it off to keep people away. Objectors said the public had established the required 20 years of use before the fencing went up. They said their use must have been “as of right”, meaning they behaved as if they had the right to be there even though they didn’t. There had previously been no fences or warning notices for example.
If NPP could prove it had given permission in some way – even by implication – it would be able to withdraw that permission (as it did by putting up a fence) and would also win the case. There were multiple arguments put by NPP (see below for examination of the first instance case) but the Supreme Court justices focused on the fact that NPP had a statutory role as a port authority and in particular had powers to issue byelaws governing the area of its operations (including the beach) under Section 58 of the 1878 Newhaven Act.
Effect of the byelaws on prescriptive rights
For a time Southern Railway Company regulated the docks under the Act and did indeed pass byelaws, including: keeping the public away from chained off areas; banning games and pastimes that might “obstruct or impede the use of the harbour, or any part thereof, or any person thereon”; and banning anyone bringing a dog within the harbour “unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control”.
There was no evidence of any signs indicating these restrictions with regard to the beach itself, certainly not during the 20 years up to 2006 during which beachgoers claimed they had gained rights “by prescription” (long continuous use) to register the land as a village green. So the issue was:
i) does a conditional ban on an activity otherwise sanction that activity (by banning dogs without leads, does that give permission for dogs with leads)?
ii) Does the very existence of the byelaw amount to its having been published to the general population or should there be actual publication through signage or some other means? The Supreme Court answered yes to both of those questions. So the byelaws noted above restricted where people could go (not beyond chained areas) but by implication gave permission to go into other areas – the beach itself. By banning uncontrolled dogs, by implication controlled dogs and dog-walking were by permission. The existence of byelaws – and arguably the existence of legal powers to pass byelaws restricting people – suggested all use of the land was by permission so no prescriptive rights could be gained.
On the second issue the Court of Appeal had already rejected the contention that the byelaws ought to have been displayed on the beach. Although section 88 of the 1847 Harbours Docks and Piers Clauses Act (pdf) says of the byelaws “a copy thereof” was to be “painted or placed on boards, and put up in some conspicuous part of the office of the undertakers, and also on some conspicuous part of the harbour, dock, or pier”, the judges considered this impractical “if, for instance, the boards displaying them had been destroyed or washed away by a storm, or even pulled down by vandals”.
In effect the judges chose to ignore the Act on the basis that similar provisions would not be passed in modern legislation. Although a normal landlowner would be required to publish by signage the terms on which access is allowed or denied, for a piece of legislation, promulgation is sufficient. The Law Commission has described it as an “unnecessary [provision] confirming the binding effect of byelaws which reflected 19th century doubts as to the legal effect of subordinate legislation and would never be enacted in modern legislation” (Statute Law Revision – 14th Report (1993), Law Com 211, p 175).
The leading Supreme Court judgment (by Lords Neuberger and Hodge) drew on its own recent and controversial (see Judicial anarchy on village greens) judgment in R (Barkas) v North Yorkshire County Council (pdf) to point out that in that case land held under and Act of Parliament “was then used for recreation by members of the public, to whom the statutory purpose was not communicated. Despite the absence of any communication of a licence, it was held that local inhabitants were using that undeveloped part of the land ‘by right’, and not ‘as of right’.” (Para 69) The argument amounts to saying that no one is ignorant of the law even when that law is extremely complex – and even when that law was changed (arguably) by the Supreme Court only last year. Neuberger quotes himself in the Barkas case:
“Where land is held [by a local authority] for [the statutory] purpose [of recreation], and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct.” (Barkas para 23)
This, relating to temporary recreation land, is extrapolated to cover any land subject to legislation including byelaws, saying that “he fact that the right arose from an act of the landowner (in Barkas, acquiring the land and then electing to obtain ministerial consent to put it to recreational use; in this case, to make the Byelaws which implicitly permit recreational use) does not alter the fact that the ultimate right of the public is a public law right derived from statute (the Housing Act 1936 in Barkas; the 1847 Clauses Act and the 1878 Newhaven Act in this case) (para 71). When NPP fenced off the beach it did so because it always had the right to revoke its licence; and because beachgoers were using the beach with the licence of NPP, they cannot claim rights by prescription. They have not been using the beach “nec precario“.
There was a further rather subtle argument that the Supreme Court accepted in favour of NPP: that the Commons Act 2006 could not have applied to NPP’s land because, as a port authority, it had powers (close to a duty) to develop that land for the port. Those powers predate the Act and the Act did not specifically vary the legislative regime under which NPP held those powers. Any incompatibility in the law should be judged in favour of NPP’s prior position. So the question was: “does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green?” (Para 93) As a matter of judicial construction (interpretation ) of legislation “a general provision does not derogate from a special one (generalia specialibus non derogant)”, meaning:
“Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed.” (Bennion: Statutory Interpretation, 6th ed (2013)
Registration of the beach as a village green would have made it a criminal offence for NPP to damage it (by development) but that would itself be incompatible with the port authority’s statutory purpose – to develop the harbour. The Commons Act did not explicitly repeal the legislation under which the port authority operates (and the circumstances for implied repeal did not exist) so NPP’s passivity in allowing people access could not be interpreted as allowing them to build up prescriptive rights. It was merely a licence pending the statutorily sanctioned development.
Those interested in this case will undoubtedly wish to look at the range of issues regarding Newhaven in the lower courts:
High Court: Newhaven v East Sussex 2012 http://www.bailii.org/ew/cases/EWHC/Admin/2012/647.html
Court of Appeal: R (Newhaven Port and Properties) v East Sussex 2013 (CA) http://www.bailii.org/uk/cases/UKHL/1999/28.html
(Thanks as ever to Bailii.org)
Issues before the High Court in 2012
West Beach is artificial in that it was formed by an accumulation of sand following the building of a 700 metre breakwater. It is wholly covered by seawater for 42 per cent of the day (or 42 per cent of the 25 hour 10 minute tidal cycle). When it is uncovered (for mere minutes in a day) it is about 6 hectares (15 acres). So, can an area mostly covered with water or with no fixed boundary be a village green under the Commons Act 2006?
In principle a beach can be a village green according to the act, Mr Justice Ouseley had said in the 2012 High Court case brought by NPP to overturn the council’s decision: there was no reason to say a tidal area could not be a village green despite Lord Scott in Oxfordshire County Council v Oxford City Council and Robinson  UKHL 25 having suggested the definition should be the traditional one “to be mainly land, albeit that it might have a pond or stream within its natural area”.
Ouseley preferred to point to the Commons Registration Act 1965 Section 22 which notes that “land” in the act “includes land covered with water”. He said: “Parliament has chosen its words, on three occasions so as to exclude any notion of a requirement that the registered green be ‘grassy’ or ‘traditional’.”
In other words the issue of whether lawful pastimes are undertaken on the land is definitive; the nature of the land is not. Nor was the fact that the land had no fixed boundary since a boundary could be marked on the map (the low water mark) providing the legal certainty needed to establish the extent of the land even if pastimes could not occur on it 24 hours a day. “It is not a prerequisite of registration of land as a village green that lawful recreational use be physically possible over all of it.” (Para 68)
To qualify as a village green the lawful pastimes must be undertaken “as of right” (explained here in another village green case Barkas ). This means people access the land “not by force, nor stealth, nor the licence (permission) of the owner”. NPP argued that, in effect, “precarious” permission had been granted because the land was regulated by byelaws limiting access (no swimming in the harbour, no dogs without leads). But Ouseley rejected the proposition that “because land is subject to regulation by byelaws, it is incapable of being used for sports and pastimes as of right”. Just because an authority has power to ban activities (presumably including sunbathing and frisbee) does not imply it has licensed those activities it does not ban. More is needed and “excludes any role in that respect for the declaration of intent not made to the users or licence hidden in a drawer, or as here the unannounced but still enforceable byelaws”. (Para 102) [Ouseley’s position has been overturned by the Supreme Court, see above]
NPP had also claimed that a licence for the public to use the foreshore had in effect been granted by the Crown, held under its traditional prerogative powers – and this permission need not be communicated. Thus, according to Blewett v Tregonning (1835) 3 Ad. & EI:
“It is well known that in relation to the English foreshore that many activities, including walking thereon, bathing therefrom, and beachcombing, have been generally tolerated by the Crown as owner of the foreshore, without at any time giving rise to any legal right in the public to continue them”.
This Ouseley rejected, saying: “unless there is some special rule for the Crown or the owner of the foreshore, this form of toleration cannot rebut a claim of right by showing an implied licence” (para 116). There is no reason to think the Crown is exempt from having to prove it has tolerated activity on its land like any other land owner.
Thus most of NPP’s arguments were rejected. However, another found favour with Ouseley: “that registration of the land as a village green would not be compatible with its being operational port land”. Registration would conflict with NPP’s business and duties as a port authority, for example its powers under the Harbours Docks and Piers Clauses Act 1847 to make byelaws “so long as they were exercised for the lawful purposes of the undertaking”.
Conceding a village green “would conflict with the statutory objects for which the land was held” because “If there is a likelihood, or if it is reasonably foreseeable, that the operational use of the port land would be compromised, the port operator would lack capacity to permit the recreational user [ie recreational use] to arise, or the power to abdicate its rights to use the land for the purposes of the statutory functions for which it was leased” (para 143).So Ouseley concluded:
“Whether expressed as a question of statutory capacity or powers, or the unlawful fettering of its powers, Newhaven Port cannot permit the use of this land as of right for recreational purposes because it is reasonable foreseeable that that would conflict with its statutory functions” (para 147).
As a result he ruled that no rights had been lawfully acquired over the land by the public. The Court of Appeal (on a 2-1 decision) overturned this ruling on the grounds of flawed reasoning. Ouseley was saying that NPP was not capable of granting rights over its own lands. Because it could not give permission for use by the public, nor could it not give permission. Use by the public was only without licence because NPP was incapable of giving a licence for use. Lord Justice Richards said: “Since absence of permission is an essential condition of the use on which registration as a town or village green is based, the fact that the land owner lacks capacity or power to give permission cannot operate to defeat such registration.” (Para 14) [The Court of Appeal has been overturned on this by the Supreme Court; see above]
Other relevant cases
Oxfordshire County Council v Oxford City Council 2005: http://www.bailii.org/uk/cases/UKHL/2006/25.html
Oxfordshire County Council ex p Sunningwell Parish Council http://www.bailii.org/uk/cases/UKHL/1999/28.html
Mills v Silver et al (1990): http://www.bailii.org/ew/cases/EWCA/Civ/1990/12.html
British Transport Commission v Westmorland County Council  AC 126
On the foreshore: Alfred F Beckett Ltd v Lyons  1 Ch 469 Blundell v Catterall (1821) 5 B & Ald 268
Newhaven’s arguments in the High Court: Newhaven Port challenges that decision on the grounds that
(1) a tidal beach cannot be registered as a town or village green, on the proper construction of the Commons Act; and that if it can be registered,
(2) this particular beach was not registrable on a lawful analysis of the facts relating to its actual use.
(3) A point which overlapped both those grounds was that land which had no fixed boundary could not be registered, not merely because of the ebb and flow of the tide but because the low water mark varied between the mean lows of the Neap and Spring tides and could change even more over a longer period.
(4) The Claimant next submitted that since the use of West Beach was regulated by byelaws, it was used by the public precariously, in the sense of being by licence, and therefore its use could not satisfy the requirements of the Commons Act that it be by the public as of right.
(5) This point was developed, by amendment which I permitted without objection, to claim that the use of the foreshore by the public was presumed, rebuttably, to be by permission of the Crown or its successors, and so there was no need to show that the licence had been expressly communicated by word or conduct. Nor could use by the public be as of right, as it had to be, when the public had no right of access to reach West Beach, so as to be able to use it for sports and pastimes.
(6) Newhaven Port, as the port authority, developed an argument, with subsequent written submissions, that since West Beach was part of the operational land of the port and subject to the port authority’s byelaw-making powers and its existing byelaws, registration as a town or village green was incompatible with its statutory powers and rights. Its byelaw making power remained intact and could be used to prevent the sports and pastimes which the public sought to indulge in, if desirable for the operation of the port to do so.
(7) The Claimant also sought a declaration that s.15(4) of the Commons Act was incompatible with Article 1 Protocol 1 to the ECHR, as an interference with the landowner’s existing property rights, on the grounds that it created an unjustified retrospective power to register land on an application made in 2008, after the cessation of recreational use in 2006, which occurred before s15(4) was brought into force, on 6 April 2007. The Secretary of State for Environment, Food and Rural Affairs was joined to respond to that contention. After the conclusion of oral argument, further submissions were made in writing, as anticipated, on the effect of the decision in Leeds Group plc v Leeds City Council and Others  EWCA Civ 1447, concluding on 13 December 2011.