The latest decision by the Supreme Court on the registration of West Beach in Newhaven as a village green makes interesting reading for inhabitants and landowners
Headlines such as those to be found in The Times at the end of February (“Beach is not a village green, Supreme Court rules”) can mislead the reader in search of knowledge through skimming. Although beaches are usually neither green nor in villages, they can indeed acquire village green status under the relevant legislation, now the Commons Act 2006.
West Beach in Newhaven is an attractive and accessible sandy beach that formed following the construction in the 1860s of a substantial breakwater to act as the western boundary of the harbour. It is covered at high tide, and exposed at low. Historically, it has been used by locals for many years for the sorts of activity one might expect: swimming, sunbathing, fishing and dog walking.
It therefore appeared to be a prime candidate for registration as a town or village green. Registration confers valuable protections and is available where land has been used for recreational and similar purposes by inhabitants of a locality for more than 20 years “as of right”.
The application to register West Beach as a town or village green was made in 2008 by the local authority, which supported the local inhabitants. It was opposed by the (private) owner of the port (the operational area of which includes the beach), whose development proposals for the area would have been thwarted by registration.
Although it had been argued both in the High Court and the Court of Appeal that a tidal beach cannot be a “town or village green” within the meaning of the 2006 Act, the Supreme Court refused permission to appeal on this point (see R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7), holding that the point had effectively been put beyond argument by the decision of the House of Lords in another village green case: Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 EGLR 95.
Successful points
However, the port owners did succeed on two other points, which merit a little exploration because of the bearing they may have on other village green cases.
First, the court held that byelaws made by the port authority in 1931 restricting the use of parts of the port area could be construed as implicitly granting permissions to use other parts. One example was a byelaw prohibiting swimming in certain areas, which implied a licence to swim in other areas. Prescriptive use of the beach for such purposes could not stand with this licence, because prescription presupposes the absence of any licence.
Interestingly, as part of its decision in relation to this issue, the court held that it was unnecessary for the relevant byelaws (which had not been displayed in public for many years) to have been brought to the attention of the public using the beach. There was a public law right, given by the byelaws, for the public to go on to the beach and to use it for recreational purposes, and therefore that use was
“by right” and not “as of right”, irrespective of whether the right had been communicated.
Secondly, the court held that the 2006 Act did not apply to land held for statutory purposes that were inconsistent with its registration as a town or village green. In this case, the port owner was statutorily obliged to maintain and support the harbour and its connected works. Registration as a village green would impede the use of the harbour quay to moor vessels; it would prevent the harbour authority from dredging the harbour in a way that affected the enjoyment of the beach; and it might also restrict the owner’s ability to alter the existing breakwater. Accordingly, the 2006 Act could not operate in respect of the beach by reason of statutory incompatibility.
Why all the village green cases?
This case is the latest in a line of cases on village greens that have reached the highest court in the land in the last decade and a half (R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 2 EGLR 94; R (on the application of Beresford) v Sunderland City Council [2004] UKHL 60, [2004] 1 PLR 85; Oxfordshire; R (on the application of Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 1 EGLR 153; and R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31, [2014] EGILR 33). Although the jurisprudential activity in this area may be outnumbered by the cases on whether a building is a house, enfranchisement cases are usually explained by the amount of money that turns on the result. In contrast, it may appear puzzling that so much judicial time is devoted to lower-value village greens.
The answer to the conundrum is that the registration of land as a village green makes it a criminal offence to damage the green, or interrupt its use and enjoyment as a place for exercise and recreation (see section 12 of the Inclosure Act 1857), or to encroach on or interfere with the green (section 29 of the Commons Act 1876). Accordingly, land that is registered loses its value, and becomes a burden on the landowner, who must maintain it and insure it against third party liability, without hope of valuable exploitation.
This outcome does not necessarily benefit the local inhabitants either, who may find that their precious village green becomes a desolate wasteland, frequented only by dog walkers (whose pets use the amenities of course, but perhaps not in the way intended by the draftsman of the 2006 Act), given that the landowner will have no incentive to lavish funds on its care.
In those circumstances, it is usually worth the landowner’s while to fight to preserve its asset, free from registration. Correspondingly, the village green movement, which is articulate and adept at campaigning, will fight to protect local amenity space. We can expect to see more such cases in the future.
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
