In the latest courtroom clash over registration of a tidal beach as a town or village green (TVG), the Court of Appeal has rejected a claim that a transitional provision that allowed for TVG applications, even where public use of land had ceased, was incompatible with human rights laws.
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 hoped to thwart the registration that it claims prevents effective use of the port.
It sought a declaration that section 15(4) of the Act – a transitional provision which enabled users to apply to register land as a village green even though it ceased to be used for recreation before the 2006 Act came into force – is incompatible with Article 1 of the First Protocol of the European Convention on Human Rights, because it had retrospective effect and a disproportionate impact on landowners. 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.
The port owner claimed 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 it of a statutory defence to the application.
It claimed that the section was an “overtly retrospective” provision that is disproportionate and “excessively burdensome” for landowners, with no legitimate justification.
However, Lewison LJ upheld Ouseley J’s previous ruling that s15(4) was not incompatible with the Convention.
He said that the Act was an attempt to clarify the law on TVGs, which was a legitimate aim following the “considerable uncertainty about the state of the law at the time”. He continued: “The aim of section 15 (4) was to give local inhabitants a longer period of grace in order to take account of the fact that the threat to their continued use was not as obvious as in cases of post-Act cessation. In my judgment that, too is a legitimate aim; and is consistent with the overall policy that once twenty years’ use as of right has been established ‘it should be possible … to get the land registered as a green’.”
Ruling that the period of grace provided for was proportionate, he added: “The first point to note on the question of proportionality is that it was open to the Port to prevent the twenty years’ use as of right from coming into existence at all. When this case was last before this court we decided unanimously that the Port’s bye-laws amounted to consent to the uses on which the local inhabitants relied. What divided us was whether the bye-laws needed to be communicated to the public within the twenty-year period.
“It follows, therefore, that if the Port had displayed the bye-laws on the quayside or the sea wall, the whole problem would have been eliminated. Second, since the decision of the House of Lords in R v Oxfordshire County Council, ex p Sunningwell Parish Council in 1999 all landowners have effectively been put on notice that those using their land for recreational purposes may well be asserting a public right to do so if their use of the land is more than trivial or sporadic. The fact that the Port’s predicament has come about because of its own acquiescence in a long-standing state of affairs also means, in my judgment, that the case for compensation is a particularly weak one.”
He said that, if the grace period had been limited to a short time, it might have been “of very little practical benefit to anyone”.
He concluded: “In my judgment the Secretary of State has demonstrated that section 15 (4) pursues a legitimate aim; and that the means by which it pursues that aim are not manifestly without reasonable foundation.”
Newhaven Ports and Properties Ltd v East Sussex County Council Court of Appeal (Lloyd, Lewison and Gloster LJJ) 21 May 2013
Charles George QC & Mr Philip Petchley (instructed by Dmh Stallard LLP) for the Appellant
Tim Buley (instructed by The Treasury Solicitor) for the Respondent
