30 March 2015 #Commercial Real Estate
A recent Supreme Court case has provided clarification to landowners on whether a beach within a harbour can be registered as a town or village green.
The case concerned a beach at Newhaven Harbour, owned by Newhaven Port and Properties Ltd , located within a functioning harbour with a pier, ferry dock and marina, which the East Sussex County Council sought to register as a town or village green. The beach was formed after a breakwater was constructed at the West Beach extending from the Harbour into the sea in the late nineteenth century, causing sand to gradually accumulate behind the breakwater and form the beach.
A number of byelaws specified the activities that were prohibited at the Newhaven Harbour. However there was no specific prohibition among the bye-laws of the Harbour against local inhabitants using the beach for leisure activities.
In seeking to register the beach as a village green, the Council relied on section 15 of the Commons Act 2006 . The Act permits any party to register land that meets the relevant applicable criteria as a village green, which can include land covered by water, provided that a significant number of the inhabitants of the locality have "indulged as of right" in lawful sports and pastimes on the land for a period of at least 20 years. It could be shown that local inhabitants had used the beach for over eighty years for leisure activities including sunbathing and swimming.
At first instance the court agreed with the Council's conclusion that the Beach could be registered as town or village green; however Newhaven Port and Properties Limited subsequently applied for judicial review of the court's decision.
At the Supreme Court, the case centred on the following questions:
The Supreme Court considered three possible conclusions to whether the public had the right to use the beach for leisure activities:
The Supreme Court agreed that the first possibility was not applicable to the current case being determined (as case law implied no such right to use the shore), and focused instead on the second and third conclusions.
In respect of conclusion 2, the Court held there was an "implied revocable permission" for local inhabitants to use the Beach for recreational purposes as although there were a number of restrictions on the use of the Harbour, there was none relating to the use of the beach for leisure activities. Although technically the byleaws were also required to be displayed on the beach, the Judges held the byelaws would be effective even if they were not. Consequently, as an implied licence to use the beach existed, the inhabitants used the beach "by right" not "as of right" - therefore the Council could not register the Beach as a town or village green.
This conclusion was reinforced by the court's decision in respect of the final possibility, that the public had no right to use the shore. Given that registering the beach would make it illegal to interfere with the use of the beach for leisure purposes, and taking into account the port's authority's statutory duties to operate as a working harbour (which would inevitably affect the use of the beach), the court held the 2006 Act could not enable the public to acquire rights that conflicted with statutory undertaker powers, deciding in favour of Newhaven Port and Properties Ltd.
Landowners will be reassured by the confirmation that town or village green registration will not be possible if such registration would be incompatible with the landowner’s statutory powers and duties.