Case Provides Timely Reminder For Developers

Planned development within the port of Newhaven can now go ahead following a Supreme Court decision which upheld an appeal that a harbour foreshore could not be registered as a town or village green.

In December 2008, Newhaven Town Council applied to the County Council to register a beach within a harbour as a town or village green. This was done to restrict any form of development on the land.

The 2006 Commons Act allows land to be registered as a town or village green if it used by the public for recreational purposes 'as of right' for at least 20 years. An area is said to have been used ‘as of right’ if it has been used without the permission of the landowner.

The Supreme Court dismissed the Council’s claim and found the beach had instead been used by members of the public 'by right', meaning that they had in fact been using it with permission. The Court said that the public enjoyed an implied licence arising from the local bylaws permitting use of private land for sports, dog walking and other activities.  

In addition to this, the Court also considered an argument that the beach could not be registered as a town or village green in the first place as it would interfere with its statutory function as a port. The port authority’s argument for this was unanimously rejected by the Court of Appeal, but the five Supreme Court judges unanimously disagreed.

The Supreme Court’s ruling effectively means that development at the port can go ahead as planned.

Expert Opinion

This is an interesting case which shows the potential legal issues that developers may encounter when developing near or on open space. As we are seeing an increasing number of new development projects being contemplated this case provides a timely reminder of the need to consider village green matters at an early stage in the development process. Whilst each case will depend upon its own facts (and whilst this case is an extreme example) the potential time and cost consequences of not considering the risks could be significant." Christopher Perrin - Partner