R (Newhaven Port & Properties Ltd) v East Sussex County Council (No 2)

JurisdictionEngland & Wales
JudgeLord Justice Lewison,Lady Justice Gloster,Lord Justice Lloyd
Judgment Date14 June 2013
Neutral Citation[2013] EWCA Civ 673
Docket NumberCase No: C1/2012/1215
Date14 June 2013
CourtCourt of Appeal (Civil Division)

[2013] EWCA Civ 673

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION

Mr Justice Ouseley

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lloyd

Lord Justice Lewison

and

Lady Justice Gloster

Case No: C1/2012/1215

CO/1421/2011

Between:
R (on the Application of Newhaven Port & Properties Limited)
Appellant
and
The Secretary of State for the Environment Food and Rural Affairs
Respondent

and

East Sussex County Council & Newhaven Town Council
Interested Parties

Mr Charles George QC & Mr Philip Petchley (instructed by Dmh Stallard LLP) for the Appellant

Mr Tim Buley (instructed by The Treasury Solicitor) for the Respondent

Approved Judgment

Hearing date : 21 May 2013

Lord Justice Lewison

Introduction

1

On 18 December 2008 Newhaven Town Council ("Newhaven") applied to the East Sussex County Council ("the Council") to register land at West Beach, Fort Road, Newhaven as a town or village green (a "TVG"). A TVG is land on which the inhabitants of any locality have indulged in lawful sports and pastimes as of right for not less than twenty years. The application was made under the Commons Act 2006, section 15(4). This sub-section applies where the use of the land in question ceased before section 15 came into force. According to the application the claimed use as of right ended on 6 April 2006. The land was (and remains) owned by Newhaven Port and Properties Ltd ("the Port"), which operates the port of Newhaven as part of its statutory undertaking. The Port objected to the application. So the Council, as registration authority, appointed an inspector to consider the merits of the application and to report.

2

The inspector subsequently submitted a report to the Council together with her recommendation that the application be accepted. The Council accepted her recommendation and registered the land as a TVG. The Port was dissatisfied with the Council's decision and applied for judicial review. Ouseley J quashed the registration; but the Council appealed to this court. By a majority this court allowed the Council's appeal, and restored the registration: see [2013] EWCA Civ 276. I will assume that anyone interested in this judgment will have read that one, in which the background to the case is set out fully. One of the main issues before the court on that occasion was whether use of the beach for lawful sports and pastimes was use "as of right". Use "as of right" is use without force, without stealth and without permission. What divided the court was whether the use in question was use without permission. The Port had made bye-laws which, as a matter of construction, permitted many of the activities on which the local inhabitants relied. The majority (Richards and McFarlane LJJ) decided that that was not enough. The permission had to be communicated to the local inhabitants during the twenty year period on which they relied. As the minority judge I held that the mere fact of permission and an objective record of it was enough to make the use permissive. Subject to any further appeal to the Supreme Court there the matter rests as a question of domestic law.

3

However, one of the grounds of challenge before Ouseley J, which he rejected, was that section 15 (4) was incompatible with the Port's rights under Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms ("A1P1"). His judgment on that question is at [2012] EWHC 647 (Admin) [175] to [205]. This appeal is concerned with that issue. The Port's contention is opposed both by the Secretary of State for Environment, Food and Rural Affairs; and also by the Council and Newhaven. However, neither the Council nor Newhaven have appeared on this part of the appeal. For the reasons that follow I agree with the judge that section 15 (4) is not incompatible with A1P1; and would dismiss the appeal.

4

The Port does not argue that the TVG scheme as a whole is incompatible with A1P1. It accepts that that argument is barred by Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 ("the Oxfordshire case").

5

That case in its various stages crops up at different points in the argument. It forms part of the background to the contested legislation. At this point, I merely summarise the chronology:

i) 18 November 2003 to 10 December 2003: hearing before Lightman J.

ii) 22 January 2004: Lightman J gives judgment.

iii) 17 to 20 January 2005: the hearing before the Court of Appeal.

iv) 24 February 2005: the Court of Appeal give judgment reversing Lightman J in part.

v) 19 January 2006: the Commons Bill 2006 is brought from the House of Lords to the House of Commons.

vi) 27 March to 3 April 2006: the hearing before the House of Lords.

vii) April 2006: the Port fences off access to the land which was ultimately registered as a TVG.

viii) 24 May 2006: the House of Lords give judgment reversing the Court of Appeal.

ix) 19 July 2006: the Commons Act 2006 is passed.

x) 6 April 2007: section 15 of the Act comes into force.

xi) 18 December 2008: the application for registration is made.

The legislation and its history

6

The Commons Act 2006 is Parliament's third attempt to devise an acceptable and workable scheme for the registration of TVGs. A TVG was originally defined by section 22 of the Commons Registration Act 1965. The original definition was (so far as relevant):

"town or village green" means land …on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than twenty years."

7

One of the questions thrown up by this definition was whether proof of any period of twenty years' use would justify registration; or whether the twenty year period of use had to be a continuing period. If it had to be a continuing period of use, up to what date did it have to continue? The courts provided conflicting answers to this question. Lord Hoffmann summarised some of the different views in his speech in the Oxfordshire case at [41]:

"41 Section 22 as originally enacted said that land which the inhabitants of the locality have used for sports and pastimes "for not less than 20 years" was a village green. It did not specify when that period should end. In New Windsor Corpn v Mellor [1975] Ch 380, the Court of Appeal thought that it meant 20 years before the passing of the Act. In Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, 938 Harman J thought it meant 20 years before the date of the application for registration: see also R v Norfolk County Council, Ex p Perry (1996) 74 P & CR 1, 5 (Dyson J) and Caerphilly County Borough Council v Gwinnutt (unreported) 16 January 2002 (Judge Moseley QC). But Mr Edwards, who appeared for Miss Robinson and Mr Laurence, who appeared for the registration authority, said that as the definition did not specify any terminal date, it meant any period of 20 years. On the expiry of a 20-year period of user, the land became a village green. If it had become a green before 1970 and had not been registered, it would be deemed by section 1(2)(a) not to have been a village green on the appointed day. But any 20-year period expiring after the appointed day would do."

8

At first instance Lightman J accepted this argument: [2004] EWHC 12 (Ch) [2004] Ch 253 at [57]. However, the Court of Appeal disagreed: [2005] EWCA Civ 175 [2006] Ch 43 at [100]. The House of Lords found it unnecessary to decide the point: [2006] AC 674 at [43]. But as I read their speeches, both Lord Rodger at [116] and Baroness Hale at [142] thought that any period of twenty years' use could support a registration. It seems to me that the views of Lightman J, Lord Rodger and Baroness Hale are at least consistent with what Lord Hoffmann had said (with the agreement of all the Law Lords) in the earlier case of R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] UKHL 28 [2000] 1 AC 335. He traced the development of the law relating to the acquisition of private easements by prescription. He noted that one method of acquisition was by use as of right for a period of twenty years resulting in the presumption of a fictitious lost modern grant, concluding that:

"The result of these developments was that, leaving aside the cases in which it was possible to show that (a) the right could not have existed in 1189 and (b) the doctrine of lost modern grant could not be invoked, the period of 20 years' user was in practice sufficient to establish a prescriptive or customary right."

9

He considered that many of the same considerations applied to the acquisition of public rights; and said:

"My Lords, this was the background to the definition of a "town or village green" in section 22(1) of the Act of 1965. At that time, there had been no legislation for customary rights equivalent to the Act of 1832 for easements or the Act of 1932 for public rights of way. Proof of a custom to use a green for lawful sports and pastimes still required an inference of fact that such a custom had existed in 1189. Judges and juries were generous in making the required inference on the basis of evidence of long user. If there was upwards of 20 years' user, it would be presumed in the absence of evidence to show that it commenced after 1189. But the claim could still be defeated by showing that the custom could not have existed in 1189. … It seems to me clear that class c in the definition of a village green must have been based upon the earlier Acts and intended to exclude this kind of defence. The only difference was that it allowed for no rebuttal or exceptions. If the inhabitants of the locality...

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