A legal clash over registration of a tidal beach as a town or village green (TVG) has returned to the Court of Appeal, where a transitional provision that allowed for TVG applications even where public use of land had ceased is under challenge.
In March, the Court found that the Commons Act 2006 contains no measure to narrow the definition of TVGs so as to limit it to “more traditional village greens” and went on to overturn a high court ruling that a Newhaven beach should not be reopened to the public as a TVG.
Newhaven Ports and Properties Ltd is pursuing an appeal against that decision to the Supreme Court, but, in the meantime, it launched a separate attack on the 2006 Act through which it hopes to thwart a registration that it claims prevents effective use of the port.
This time it is seeking a declaration that section 15(4) of the Act is incompatible with Article 1 of the First Protocol of the European Convention on Human Rights, because it has retrospective effect and a disproportionate impact on landowners.
Opening the case, Charles George QC, for Newhaven Ports, said that if the provision is declared incompatible and the matter referred back to the government, his client is hopeful that the current version of section 15(4) will be “swept away”, with the effect of removing the registration.
He said: “We are very hopeful that we will get back our operational port, if the Supreme Court does not give it back to us in any event.”
Mr George said that between April 2006, when the beach was closed to the public, and April 2007, when the Act came into force, no application could have been made to register the land as a TVG. However, section 15(4) had the effect of depriving Newhaven Ports of a statutory defence to the application.
As such, he argued that it is an “overtly retrospective” provision that is disproportionate and “excessively burdensome” for landowners, with no legitimate justification.
He said that the section was intended to provide a “transitional period of grace” as a result of the change in the law on TVGs introduced by the 2006 Act, which might arguably have been a legitimate aim had it been limited to a short period. But he argued that a five-year period was “manifestly without reasonable foundation”.
Allyson Colby, Senior Associate for Pinsent Masons LLP, said that the case would have “significant implications” for any other TVG applications made possible by section 15(4), a transitional provision which enabled users to apply to register land as a green even though it ceased to be used for recreation before the 2006 Act came into force. Applications under the section were required to be made within five years of the cessation of use and the period of grace conferred by the section finally ended on 5 April 2012.
She said: “The law on the registration of town and village greens was introduced for carefully considered reasons of public policy and the courts have previously held that there is no incompatibility between the rules and Article 1 of the European Convention on Human Rights. There is a legitimate public interest in the preservation of open spaces for recreation and the rules do not deprive landowners of ownership of the land itself, or of their right to use it in ways that are compatible with recreational use.
“In this case, the landowner has chosen to concentrate its fire specifically on section 15(4) of the Commons Act 2006.
“On the facts of this case, it would not have been possible to apply to register the beach as a green under the previous law because the use ceased in April 2006. The landowner claims that section 15(4) revived the right to apply for registration and has retrospectively deprived it of an insuperable defence to the application.
“The High Court refused to usurp the role of making legislative choices which were for Parliament to make, and rejected the landowner’s arguments. It noted that a change in the law had been on the cards since 2000 and that the landowner could have taken steps to end the use in time to forestall the application to register the land as a green. It will be interesting to see whether the Court of Appeal agrees with this analysis.
“However, the decision will have significant implications for the parties to this case, and for any others who find themselves in a similar position. The judgment may also have a wider impact on transitional provisions that relate back over lengthy periods where Convention rights are engaged.”
The court will give its decision in writing at a later date.
Newhaven Ports and Properties Ltd v East Sussex County Council Court of Appeal (Lloyd, Lewison and Gloster LJJ) 21 May 2013
A legal clash over registration of a tidal beach as a town or village green (TVG) has returned to the Court of Appeal, where a transitional provision that allowed for TVG applications even where public use of land had ceased is under challenge. In March, the Court found that the Commons Act 2006 contains no measure to narrow the definition of TVGs so as to limit it to “more traditional village greens” and went on to overturn a high court ruling that a Newhaven beach should not be reopened to the public as a TVG. Newhaven Ports and Properties Ltd is pursuing an appeal against that decision to the Supreme Court, but, in the meantime, it launched a separate attack on the 2006 Act through which it hopes to thwart a registration that it claims prevents effective use of the port. This time it is seeking a declaration that section 15(4) of the Act is incompatible with Article 1 of the First Protocol of the European Convention on Human Rights, because it has retrospective effect and a disproportionate impact on landowners. Opening the case, Charles George QC, for Newhaven Ports, said that if the provision is declared incompatible and the matter referred back to the government, his client is hopeful that the current version of section 15(4) will be “swept away”, with the effect of removing the registration. He said: “We are very hopeful that we will get back our operational port, if the Supreme Court does not give it back to us in any event.” Mr George said that between April 2006, when the beach was closed to the public, and April 2007, when the Act came into force, no application could have been made to register the land as a TVG. However, section 15(4) had the effect of depriving Newhaven Ports of a statutory defence to the application. As such, he argued that it is an “overtly retrospective” provision that is disproportionate and “excessively burdensome” for landowners, with no legitimate justification. He said that the section was intended to provide a “transitional period of grace” as a result of the change in the law on TVGs introduced by the 2006 Act, which might arguably have been a legitimate aim had it been limited to a short period. But he argued that a five-year period was “manifestly without reasonable foundation”. Allyson Colby, Senior Associate for Pinsent Masons LLP, said that the case would have “significant implications” for any other TVG applications made possible by section 15(4), a transitional provision which enabled users to apply to register land as a green even though it ceased to be used for recreation before the 2006 Act came into force. Applications under the section were required to be made within five years of the cessation of use and the period of grace conferred by the section finally ended on 5 April 2012. She said: “The law on the registration of town and village greens was introduced for carefully considered reasons of public policy and the courts have previously held that there is no incompatibility between the rules and Article 1 of the European Convention on Human Rights. There is a legitimate public interest in the preservation of open spaces for recreation and the rules do not deprive landowners of ownership of the land itself, or of their right to use it in ways that are compatible with recreational use. “In this case, the landowner has chosen to concentrate its fire specifically on section 15(4) of the Commons Act 2006. “On the facts of this case, it would not have been possible to apply to register the beach as a green under the previous law because the use ceased in April 2006. The landowner claims that section 15(4) revived the right to apply for registration and has retrospectively deprived it of an insuperable defence to the application. “The High Court refused to usurp the role of making legislative choices which were for Parliament to make, and rejected the landowner’s arguments. It noted that a change in the law had been on the cards since 2000 and that the landowner could have taken steps to end the use in time to forestall the application to register the land as a green. It will be interesting to see whether the Court of Appeal agrees with this analysis. “However, the decision will have significant implications for the parties to this case, and for any others who find themselves in a similar position. The judgment may also have a wider impact on transitional provisions that relate back over lengthy periods where Convention rights are engaged.” The court will give its decision in writing at a later date. Newhaven Ports and Properties Ltd v East Sussex County Council Court of Appeal (Lloyd, Lewison and Gloster LJJ) 21 May 2013
