Tag Archives: Village greens

Newhaven Port: Why UK Supreme Court ruled beach cannot be village green

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precario” (not by force, nor stealth, nor the licence of the owner – precario meaning a permission that can be easily withdrawn).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.

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Barkas case: Judicial anarchy on the village green

Was the Supreme Court right to overrule the leading village greens case of R (Beresford) v Sunderland City Council (2003) in its recent judgment in R (Barkas) v North Yorkshire County Council (2014; pdf)? There is a strong argument to suggest Lord Neuberger et al have overstepped the mark in declaring Beresford no longer good law – in a gross breach of the rules of judicial precedent on which our law relies. The result will be that it will be far more difficult from now on to have land designated as village greens, protecting it from development.

  The Supreme Court is supposed to accept earlier judgments of the same court, even if the current incumbents think they are wrong, unless there are very good reasons not to, such as a material change in circumstances or strong public interest. That allows for legal certainty, so people can act according to the known law, as examined and approved by the highest court in the land, rather than seek to rerun a similar case a few years later in the hope that the judicial dice might fall a different way. That is the principle that Neuberger et al have thrown to the four winds in disapproving Barkas.

   There are supposed to be limitations on the rare occasions when the Supreme Court can breach precedent and overrule itself. In particular the overruling must help to resolve the case before them. That was not so in Barkas. Lower courts and the Supreme Court itself had all resolved the case (rejecting the application to turn a piece of land in Whitby into a village green) by distinguishing it from Beresford – different facts, different law. There was no requirement to then go on to overrule Beresford – indeed the rule is that they should not go on to overrule the earlier case. But the Supreme Court Justices did so anyway.

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