The Queen (on the application of Newhaven Port and Properties Ltd) (Claimant Respondent) v East Sussex County Council (Defendant/First Appellant) Newhaven Town Council (Interested Party/Second Appellant)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 21 March 2012 |
| Neutral Citation | [2012] EWHC 647 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 March 2012 |
| Docket Number | Case No: CO/1421/2011 |
[2012] EWHC 647 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/1421/2011
Mr Charles George, QC and Mr Philip Petchey (instructed by dmh Stallard Solicitors) for the Claimant
Mr Stephen Sauvain, QC and Mr John Hunter (instructed by Legal & Democratic Services Solicitors) for the Defendant
Mr Edwin Simpson (instructed by Hedleys Solicitors LLP) for the 1st Interested Party
Mr David Forsdick (instructed by Treasury Solicitors) for the 2 nd Interested Party
Hearing dates: 8 th, 9 th, 10 th and 11 th November 2011
Approved Judgment
Introduction
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).
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.
Newhaven Port, as I shall call it, 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.
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.
Newhaven Port challenges that decision on the grounds that a tidal beach cannot be registered as a town or village green, on the proper construction of the Commons Act; and that if it can be registered, this particular beach was not registrable on a lawful analysis of the facts relating to its actual use. A point which overlapped both those grounds was that land which had no fixed boundary could not be registered, not merely because of the ebb and flow of the tide but because the low water mark varied between the mean lows of the Neap and Spring tides and could change even more over a longer period. The Claimant next submitted that 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 therefore its use could not satisfy the requirements of the Commons Act that it be by the public as of right. This point was developed, by amendment which I permitted without objection, to claim that the use of the foreshore by the public was presumed, rebuttably, to be by permission of the Crown or its successors, and so there was no need to show that the licence had been expressly communicated by word or conduct. Nor could use by the public be as of right, as it had to be, when the public had no right of access to reach West Beach, so as to be able to use it for sports and pastimes.
Newhaven Port, as the port authority, developed an argument, with subsequent written submissions, that since West Beach was part of the operational land of the port and subject to the port authority's byelaw making powers and its existing byelaws, registration as a town or village green was incompatible with its statutory powers and rights. Its byelaw making power remained intact and could be used to prevent the sports and pastimes which the public sought to indulge in, if desirable for the operation of the port to do so.
The Claimant also sought a declaration that s15 (4) of the Commons Act was incompatible with Article 1 Protocol 1 to the ECHR, as an interference with the landowner's existing property rights, on the grounds that it created an unjustified retrospective power to register land on an application made in 2008, after the cessation of recreational use in 2006, which occurred before s15(4) was brought into force, on 6 April 2007. The Secretary of State for Environment, Food and Rural Affairs was joined to respond to that contention. After the conclusion of oral argument, further submissions were made in writing, as anticipated, on the effect of the decision in Leeds Group plc v Leeds City Council and Others [2011] EWCA Civ 1447, concluding on 13 December 2011.
The Commons Act 2006
The registration of common land, rights of common and of town and village greens has a recently complex statutory history, with amendment responding to problems revealed and to judicial decisions, as the competing interests of landowner and recreational user conflict and require resolution.
The directly relevant Act is the Commons Act 2006. S15 provides:
"(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.
(2) This subsection applies where—
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application.
(3) 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 time of the application but after the commencement of this section; and
(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b).
(4) This subsection applies (subject to subsection (5)) 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).
(5) Subsection (4) does not apply in relation to any land where—
(a) planning permission was granted before 23 June 2006 in respect of the land;
(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and
(c) the land—
(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or
(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.
(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.
(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied—
(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and
(b) where permission is granted in respect of...
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