R (on the application of Newhaven Port and Properties Limited)(Appellant) v East Sussex County Council and another (Respondents)  UKSC 7
Registering a green space as a town or village green (TVG) affords a high level of protection from development. Campaigners who wish to prevent development therefore often resort to such applications.
Registration can be made of land which may at first seem to be at odds with the common sense interpretation of “village green” and can include such areas as beaches.
In order for a commons registration authority such as a council to register land as TVG, the basic requirement is that a significant number of local people need to have used the land as of right for at least 20 years, pursuant to s 15 of the Commons Act 2006.
The meaning of “as of right” has been central to recent clarifications on the law. It reflects the principles central to proving prescriptive rights – where those rights are enjoyed, “nec vi, nec clam, nec precario” or “without force, secrecy orpermission. If there is permission or licence to use an area of land, then this will be use not “as of right” but “by right” and fatal to the application.
Last year, as reported in ELM (June 2014 issue page 1) the Supreme Court in R (on the application of Barkas) v North Yorkshire County Council and another  decided that where land is provided and maintained by a local authority under statutory provisions in the Housing Acts, the land would not be enjoyed as of right for the purposes of s 15 (2) (a) of the Commons Act 2006.
The Newhaven case further clarifies the definition of “as of right” and narrows the circumstances in which campaigners can protect green spaces.
The beach in question - “West Beach” - is part of an operational area of a harbour owned by Newhaven Port and Properties (NPP). Residents of the locality had used the Beach for well over 80 years as a place to play, sunbathe, picnic, swim and surf.
Although the beach has been used for many years by local people for recreation, it has also been subject at least since 1731 to legislation regulating the powers of the successive authorities which have had responsibility and ownership of the beach.
Most recently, in 1991, the Sealink (Transfer of Newhaven Harbour) Harbour Revision Order 1991 (SI 1991/1257) (“the 1991 Newhaven Order”) provided powers for NPP in its function in maintaining the harbour including the beach. An earlier set of byelaws from 1931 included a requirement for permissions for most activities including fishing, swimming and dog walking.
The legal issues
East Sussex Council registered the beach and NPP judicially reviewed the decision of the Council. After successive appeals, the case was considered by the Supreme Court.
The Supreme Court considered three issues: firstly, whether the fact that the Beach is part of the foreshore defeats the contention that the user by local inhabitants for sports and pastimes can have been “as of right” on the ground that the public had an implied right to use it.
The second issue was whether the public had an implied licence to use the Beach, as part of the Harbour, in the light of the Byelaws.
The third issue addressed the potential conflict of statutory function of land with section 15 of the 2006 Act.
Lord Neuberger and Lord Hodge gave the combined lead judgment with which the other judges agreed – with a further additional analysis from Lord Carnwath.
Public rights over the foreshore
On the first issue, the basic principle is that in England and Wales, the foreshore (the area between the high water and low water mark), is owned by the Crown, although it is open to the Crown to “alienate” it, either permanently by sale or temporarily by lease.
NPP argued that it follows from this that there is a rebuttable presumption that the public use of the foreshore is by permission of the owner of the Beach – that is, the Crown or its successors in title. Therefore, any use made by the local people would be “by right” (permissive and by licence) only.
Where there is no express permission from the owner of the foreshore, there are at least three possible ways in which the public use the foreshore. The first possibility is that it is used by the public for swimming and so on as a matter of general common law right. 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, 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.
Effectively, the common law right or the presumed permission would both defeat the requirement of use “as of right”. Their use would be, instead, “by right” – i.e. permissive. However, if the use is a trespass, then it could be “as of right”.
The Supreme Court turned to the early authorities on the foreshore and rights which they said tended to be “unclear as between the second and third possibilities”.
Extraordinarily, after a discussion of the early authorities, Lords Neuberger and Hodge decided not to provide a decision on this aspect in full on the basis that although it is “of wide-ranging importance. . we would be uncomfortable about determining it” [para 50]. Lord Carnwath went on to develop the arguments further – but, again, without a final conclusive determination.
But when applied to this beach, they conclude that “we proceed on the assumption. . that members of the public, and therefore inhabitants of the locality, used the Beach for bathing “as of right” and not “by right” [para 51]
NPP’s most important argument was that the effect of the Byelaws was to amount to a licence or permission for members of the public to use the Beach for leisure activities.
The problem is that byelaws do not always expressly permit a leisure activity – but they can impliedly – subject to the usual rules in determining whether there is an implied licence – in other words whether it is necessary or obvious.
For example, a “prohibition can be expressed in such a way as to imply a permission” - an example being where the byelaw forbids the bringing of a dog into the Harbour “unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control” - or where swimming is forbidden in some locations, the implication is that it is allowed elsewhere.
But do the byelaws need to be brought to the public’s attention to make the local use permissive? There were arguments that NPP had failed to ensure that the Byelaws were displayed properly.
“As the decision in Barkas demonstrates, it is not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of the land concerned was permitted in order for their use to be treated as being “by right” rather than “as of right” [para 69]
In this case, as in Barkas, the legal position, binding on both landowner and users of the land, was that there was a public law right, derived from statute, for the public to go onto the land and to use it for recreational purposes, and therefore, in this case, as in Barkas, the recreational use of the land in question by inhabitants of the locality was “by right” and not “as of right”. The 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].
The Supreme Court therefore allowed the appeal on the byelaw issue and, although this “rendered it strictly unnecessary to consider its appeal on the third issue [statutory incompatibility]”, they considered anyway.
NPP’s argument was that section 15 of the 2006 Act should not be interpreted as extending to the Harbour because it was reasonably foreseeable that registration of the Beach as a town or village green would conflict with the port authority’s future exercise of its statutory powers.
There is no express exclusion in the Commons Act of land held by statutory undertakers for statutory purposes such as ports authorities. Therefore, any restriction on the scope of section 15 would have to be implied.
NPP argued that statutory incompatibility provides the implied restriction. In support of its assertion NPP relied on the principles established in public rights of way and private easement cases.
There then followed a long and sweeping examination of both English and Scots authorities on these issues.
In summary, Lords Neuberger and Hodge’s view was that
Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes.[para 93]
There is an incompatibility between the 2006 Act and the statutory regime which confers harbour powers on NPP to operate a working harbour, which is to be open to the public for the shipping of goods etc on payment of rates (section 33 of the 1847 Clauses Act). NPP is obliged to maintain and support the Harbour and its connected works (section 49 of the 1847 Newhaven Act), and it has powers to that end to carry out works on the Harbour including the dredging of the sea bed and the foreshore (section 57 of the 1878 Newhaven Act, and paras 10 and 11 of the 1991 Newhaven Order).[para 94]
assuming that there is no general common law right for the public to use the foreshore for bathing and associated recreational activities, the user was by permission in the light of the Byelaws, and that in any event the 2006 Act cannot operate by reason of incompatibility with the statutory basis on which NPP’s predecessors acquired the land, and the statutory purposes for which they held, and now NPP holds, that land.
Lord Carnwath, agreeing that the appeal should be allowed under the byelaw ground, added considerable breadth to the discussion of the first area of consideration of public rights in general.
After a long analysis of both domestic English and Welsh law and Scots Law and foreign common law jurisdictions, he concluded
This review of the comparative jurisprudence is of interest, on the one hand for the apparently universal recognition of the recreational use of the foreshore in practice, but on the other for the continuing uncertainty in many jurisdictions as to the legal basis for that use and the wide variety of legal methods (statutory or judicial) used to resolve it. This divergence seems surprising, given the universality of the practice, and the common roots of
most of the systems of law considered, either in Roman law, or in the rights and obligations of the Crown under the English common law.[para 130]
Turning to the overall context of the beach, said,
.. This is not an historic beach, but one created artificially in relatively recent times, as a consequence of the statutory harbour works. Nor was public use accepted without question. As appears from the application for registration, the public were barred for some time after the end of the First World War, and their use only resumed in response to a public protest. There might well be a case for treating what followed as tolerated trespass, or use “as of right”, had not the whole area been brought under formal regulation by the making of the byelaws. For the reasons given by Lord Neuberger, I agree that thereafter the only possible inference is that the use was permitted by the harbour authorities and was therefore “by right”. [para 136]
In relatively recent legislation – the Growth and Infrastructure Act 2013 – the government narrowed the criteria for successful TVG applications by excluding those where planning permission has already been granted.
However, this case and Barkas before it further limit the ability of campaigners to apply successfully to protect beaches which have not so far been ear-marked for development. it also means that where an public authority or quasi-public authority owns and regulates a piece of land, it is likely that this will be sufficient to defeat an application for registration
The case also raises some interesting issues over general rights over the foreshore and demonstrates that there is much that still needs to be resolved.
Justin Neal, Irwin Mitchell
his article first appeared in the March edition of Environmental Law Monthly and has been reproduced with the kind permission of the publisher.