Traditional village greens were situated on grassy land where local people could gather to exercise and play. However, there is no legal requirement that a town or village green must consist mainly of grass, or be situated in, or not far from, a town or village. Indeed, following consultation last year, the Department for the Environment Food and Rural Affairs dropped proposals for a test to ensure that land eligible for registration as a green accords with the popularly held traditional character of such areas.
R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council [2013] EWCA Civ 276 confirms that even tidal beaches are eligible for registration as greens. The court held that there was no scope for arguing that the physical characteristics of land are relevant to whether it should be registered as a green because the Commons Act 2006 focuses on the use, as opposed to the character of the land itself. Quite simply, the test is: have 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?
The High Court reached exactly the same conclusion. However, the beach formed part of the operational land of a port, and the harbour authority persuaded the trial judge that registration was incompatible with its statutory powers and duties. The Court of Appeal has overturned the decision. It noted that parliament had not exempted land held by public bodies from the legislation and ruled that satisfaction of the conditions in the statute does not depend on the landowner’s capacity to make a grant, but on whether the relevant use was use “as of right”. Consequently, there was no reason to refuse to register the beach as a green.
There was no public right of way onto the beach, but the court did not regard this as an obstacle either. The absence of a proven highway did not mean that the recreational use was not as of right – and to treat this as a reason to refuse registration would add an unwarranted pre-condition to the statute. The Court of Appeal also rejected an argument that registration was precluded because the boundaries of the green were liable to alteration due to tidal changes. It ruled that this did not tell against the lawfulness of registration now.
The land was subject to bye-laws, which impliedly permitted the public to access the harbour and engage in sports and activities. However, the majority rejected the suggestion that the use was permissive on the ground that the bye-laws had not been displayed or enforced for more than 20 years. Consequently, there had been nothing to inform members of the public that they had permission to use the beach.
Lord Justice Lewison delivered a persuasive dissenting judgment. He thought that it would be reasonable to assume that members of the public use the foreshore with implied permission from the Crown. He also believed that the use was permissive because the bye-laws had been validly made and communicated to the public – and therefore remained effective without need of any further action by the harbour authority.
Allyson Colby is a property law consultant