R (Newhaven Port & Properties Ltd) v East Sussex County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice McFarlane,Lord Justice Lewison |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWCA Civ 276 |
| Docket Number | Case Nos: C1/2012/1170 and C1/2012/1280 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 2013 |
[2013] EWCA Civ 276
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Ouseley
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Mcfarlane
and
Lord Justice Lewison
Case Nos: C1/2012/1170 and C1/2012/1280
and
Stephen Sauvain QC and John Hunter (instructed by Legal & Democratic Services Solicitors) for the First Appellant
George Laurence QC and Edwin Simpson (instructed by Hedleys Solicitors LLP) for the Second Appellant
Charles George QC and Philip Petchey (instructed by DMH Stallard Solicitors) for the Respondent
Hearing dates : 26–28 February 2013
The issue in this case is whether an area of beach known as West Beach in Newhaven, East Sussex, is registrable as a town or village green pursuant to s.15 of the Commons Act 2006. In the Administrative Court, Ouseley J rejected all but one of the arguments against registration advanced by the sole objector, Newhaven Port and Properties Limited ("NPP"). The one ground of challenge which he accepted was, in summary, that registration was incompatible with NPP's statutory powers and duties. East Sussex County Council (the registration authority) and Newhaven Town Council (which made the application for registration) both appeal against that finding. NPP opposes the appeals in respect of that ground and, by way of respondent's notice, seeks to rely in addition on most of the grounds that were rejected by the judge.
The background facts
The judgment below starts with a convenient summary of the background facts:
"1. Newhaven is a port town at the mouth of the River Ouse in East Sussex. In 1883, a breakwater was constructed to form the western boundary of the harbour. It extends just over 700m out to sea. The breakwater caused the accretion of sand on its eastern side; that area is now known as West Beach. To the north, the beach is bounded by a high sea wall, from which a pair of steps lead down to the beach. The sea wall is topped by a wide area of hard surfacing known as the Promenade, on which there is a car park. There is another set of steps down from the breakwater itself on to this beach. The beach is wholly covered by water at high tide; as the tide ebbs and flows, the beach becomes uncovered and covered to a greater or lesser extent, but still remains wholly covered by the sea for 42 per cent of every 25 hours 10 minutes of the full tidal cycle. It is wholly uncovered for only a few minutes each day. The area of the beach to mean low water mark is 6.07 ha (15 acres).
2. East Sussex County Council has decided to register West Beach as a town or village green under the Commons Act 2006, for which it is the registration authority. That decision is the subject of this challenge. The County Council decided to register West Beach after receiving an application from Newhaven Town Council on 18 December 2008. That application was supported by significant evidence that West Beach had been used by local inhabitants as of right for lawful sports and pastimes for at least the twenty years expiring in April 2006. That was when the owner of West Beach, Newhaven Port and Properties Ltd, the Claimant, which owns and operates Newhaven Port, fenced off public access to West Beach. It also claims that the sea wall is in a condition which would make public access to its beach dangerous.
3. Newhaven Port … objected to this application; it was the only objector. The Defendant County Council held a non-statutory public local inquiry to hear the disputed evidence on user, and the legal arguments, many of which were deployed before me. It appointed Miss Ruth Stockley of Counsel, as the Inspector to report to the County Council with recommendations. She has great experience in this area of the law. After the inquiry in July 2010, she reported to the County Council with a reasoned recommendation that the application for registration be accepted. Newhaven Port was given the opportunity to comment on her report and recommendations before the County Council reached its decision. Newhaven Port did so in November 2010, which led to an addendum report from the Inspector. She did not change her mind.
4. On 22 December 2010, her reports and recommendation were reported to the County Council's Commons and Village Green Registration Panel, with an officer recommendation that the application be approved. That recommendation was accepted, which forms the decision being challenged. Registration has not yet taken place, because of this litigation."
The legislative framework
The law relating to town and village greens has been the subject of detailed examination by the House of Lords and Supreme Court in a series of recent cases: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335 (" Sunningwell"), R (Beresford) v Sunderland City Council [2004] 1 AC 889 (" Beresford"), Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 ( "Oxfordshire"), and R (Lewis) v Redcar and Cleveland Borough Council (No.2) [2010] 2 AC 70 (" Lewis"). The background to the present legislation is considered at length in those cases (see in particular Oxfordshire at paras 3–28). I propose to give only the barest outline of the successive legislative stages.
Provision for the registration of town or village greens was introduced by the Commons Registration Act 1965. Section 22(1) defined "town or village green" as follows:
"'town or village green' means land (a) which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or (b) on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or (c) on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."
The same subsection provided that "'land' includes land covered with water". (In accordance with later practice — see e.g. Oxfordshire para 20 — I have inserted "(a)" to "(c)" into the definition of town or village green so as to mark the separate limbs of that definition.)
The definition of town or village green in s.22(1) of the 1965 Act was amended by the Countryside and Rights of Way Act 2000: limb (c) was replaced by the words "which falls within subsection (1A) of this section", and a new subsection (1A) was inserted as follows:
"(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either —
(a) continue to do so, or
(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions."
The relevant provisions of the 1965 Act were then replaced in their entirety by s.15 of the Commons Act 2006, which provides, so far as material:
" 15. Registration of greens
(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), ( 3) or (4) applies.
…
(4) This subsection applies … where—
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the commencement of this section; and
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b)."
By s.61(1), "land" again includes land covered by water.
The present case raises various points concerning the meaning and application of those provisions. The starting point for any such discussion, however, is the uncontroversial proposition that use "as of right" means "nec vi, nec clam, nec precario", that is "not by force, nor stealth, nor the licence of the owner": see e.g. Beresford para 3 and Lewis para 20.
The issues in the case
The grounds of challenge in the court below were, in summary, that (1) a tidal beach cannot be registered as a town or village green, on the proper construction of the Commons Act 2006; (2) even if a tidal beach can in principle be registered, West Beach itself is not registrable on a lawful analysis of the facts relating to its actual use; (3) land which, in part, has no fixed boundary (in this case because of the effect of the tides) cannot be registered; (4) since the use of West Beach was regulated by byelaws, it was used by the public precariously, in the sense of being by licence, and not as of right; (5) use of the foreshore was presumed, rebuttably, to be by permission of the Crown or its successors, and there was no need to show that the licence had been communicated expressly by word or conduct; (6) use of West Beach by the public could not have been as of right since the public had no right of access to it; (7) since West Beach was part of the operational land of the port and was subject to NPP's byelaw making powers and the existing byelaws, registration was incompatible with NPP's statutory powers and duties; and ( 8) s.15(4) of the Commons Act 2006 is incompatible with article 1 of protocol 1 to the European Convention on Human Rights, as an interference with the landowner's property rights, in creating an...
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