Key points
• The Supreme Court has refused to allow a beach, which forms part of the operational land of a working harbour, to be registered as a town or village green
• The court hinted that it might be prepared to reconsider the status of members of the public who use beaches for recreation
Are members of the public entitled to use beaches as places to picnic, play, sunbathe and swim? The Supreme Court came tantalisingly close to answering this question in R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] PLSCS 62. Ultimately, however, it decided that locals had been permitted to use a beach in the port of Newhaven for reasons based entirely on the circumstances of the particular case, and not on any ground that could be applied to beaches in general.
Paradoxically, local inhabitants did not welcome the decision that they had not been trespassing. The harbour authority had erected a fence to keep people off the beach, with one eye on health and safety and another on plans to redevelop the ferry terminal to take larger ships, and the users had hoped to regain access and to protect the beach from development by registering it as a green.
Registration protects land from development because it is a criminal offence to do anything that interferes with its use as a green. However, applicants must first show that they have indulged in lawful sports and pastimes on the land “as of right” for a period of at least 20 years: section 15 of the Commons Act 2006.
Quality of use
Longstanding authorities, dating back to Blundell v Catterall (1821) 5 B&Ald 268, suggest that members of the public who use beaches for recreation do so “as of right” and locals had used this beach for more than 80 years. However, the Supreme Court decided that the use of Newhaven beach had been “by right”, which put paid to the application.
The difference between use “by right” and “as of right” was crucial. They are the antithesis of the other, and it is only user “as of right” that renders land eligible for registration as a green. To fall into this category, applicants must show that they have been using land openly, without exercising force, and without having any lawful right to do so. Landowners can reasonably be expected to take issue with such use – but not with use “by right” because, where use is “by right”, users will have permission to use the land or will have a legal right to do so.
Byelaws
The beach was subject to byelaws that controlled the use of the harbour, although they had not been publicly displayed for more than 20 years. The byelaws restricted access to the quays and prohibited swimming in certain parts of the harbour. No one was allowed to play games that would impede the use of the harbour, dogs had to be kept under control and fishing was prohibited, except with the harbour master’s permission.
The harbour authority was unable to point to a byelaw that expressly permitted these activities, but the court ruled that prohibitions may be expressed in such a way as to imply permission. Any reasonable reader of the byelaws would have understood them to mean that members of the public could use the beach for recreation if they complied with the restrictions in the byelaws. Therefore, the use of the beach had been lawful.
There was one more obstacle to the argument that use of the beach had been “by right”. The byelaws had not been brought to the attention of the public during the last 20 years and the normal rule, where a private landowner is concerned, is that any licence to use land must be communicated to users before it can be said that use is “by right”.
However, the court ruled that the byelaws became effective when they were confirmed and that the harbour authority’s failure to display them in latter years had not deprived them of legal effect (although this might have prevented prosecutions for infringement). The public had a right, derived from the byelaws and, ultimately, from statute, to use the beach for recreation and Barkas v North Yorkshire County Council [2014] UKSC 31; [2014] PLSCS 158 demonstrates that communication of the existence of a licence to use land is unnecessary in the case of public law rights, derived from statute, sanctioning the use of land for recreation.
Statutory incompatibility
The conclusion that the use of the beach had been “by right” would have sufficed to dispose of the case. However, the court also held that the town and village green regime was incompatible with the statutory regime governing the harbour.
Parliament had given the owner of the port powers to acquire, hold and use land for specific statutory purposes and the Commons Act 2006 did not operate to enable others to acquire rights that would prevent the land from being used for those purposes. The fact that a public body owns and may have statutory powers to develop land will not, of itself, suffice to defeat an application to register a green. However, this beach was part of a working harbour, which was established and governed by a specific statutory regime. Registration of the beach as a green would impede the use of the port. Therefore, the beach could not be registered as a green.
The legal status of users of the foreshore in England and Wales was left for another day. However, the court’s comments, and Lord Carnwath’s review of the law in other jurisdictions, suggest that the court might be prepared to reconsider the status of those using beaches for recreation, which would have important implications for the law in general – and for applications to register beaches as greens.
