Town or village green – Registration – Commons Act 2006 – Human rights – Registration of beach as town or village green under section 15(4) of 2006 Act – Whether public using beach “as of right” for recreation so as to found entitlement to registration – Whether byelaws made by appellant landowner amounting to implied permission precluding use “as of right” – Whether registration under 2006 Act incompatible with statutory purpose for which appellant holding land as port authority – Appeal allowed
In December 2010, the first respondents, as registration authority, approved an application by the second respondent town council to register a tidal beach in Newhaven as a town or village green (TVG), pursuant to section 15 of the Commons Act 2006, on the ground that it had been used by local inhabitants as of right for a period of 20 years up to April 2006; the use had ceased at that date when the appellant, as owner of the beach, had fenced it off from public access. The appellant was the harbour authority for Newhaven port and had various statutory functions in relation to the maintenance and operation of the port, including the power to make byelaws regulating its use.
The decision to register was quashed in judicial review proceedings brought by the appellant but was subsequently reinstated on an appeal in which the secretary of state participated as respondent: see [2012] EWHC 647 (Admin) and [2013] EWCA Civ 276; [2013] 2 EGLR 7. The Court of Appeal held that none of the matters relied on by the appellant, including the existence of byelaws permitting many of the recreational activities carried on by the public on the beach, prevented the relevant public use from being “as of right” within section 15; in the case of the byelaws, it held that the relevant permission had not been communicated to the public. In a separate appeal hearing, the Court of Appeal also held that section 15(4) was not incompatible with the right to peaceful enjoyment of possessions under Article 1 of the First Protocol to the European Convention on Human Rights: see [2013] EWCA Civ 673; [2013] 3 EGLR 173. The appellant appealed to the Supreme Court.
Held: The appeal was allowed.
(1) For the purposes of the present appeal, it was not necessary to decide whether, as a matter of general law, members of the public using the beach for bathing did so under a presumed permission from the owner or as trespassers. That was because, on the specific facts of the instant case, the byelaws made by the appellant amounted to a permission for members of the public to use the beach for leisure activities; consequently, such use was “by right” not “as of right” and could not support an entitlement to registration as a town or village green. As a matter of principle, a byelaw could permit an activity which would otherwise be unlawful. Mere silence or inactivity could not amount to permission from the entity entitled to give it, and the absence of any express or implied prohibition in the byelaws could not, without more, amount to an implied licence. However, a prohibition could be expressed in such a way as to imply a permission. So far as the byelaws prohibited bathing in a specified area of the beach, and prohibited sports and games that impeded the use of the harbour, the implication was that bathing could take place elsewhere in the harbour, and that associated recreational activities could also take place provided that they did not impede the use of the harbour. A normal speaker of English reading the byelaws would assume that he or she was permitted to bathe or play provided that the activity did not fall foul of the restrictions in the byelaws. Accordingly, generally harmless activities such as bathing were in principle permitted.
The byelaws were effective as byelaws notwithstanding that they were not displayed on boards in the harbour. The lack of display did not prevent them from operating as an effective licence rendering the use of the beach by members of the public “by right” rather than “as of right”. It was not always necessary for the landowner to show that members of the public had had their attention drawn to the fact that their use of the land was permitted. The legal position, binding on both the landowner and users of the land, was that there existed a public law right, derived from statute in the form of the byelaws, for the public to go onto the land and use it for recreational purposes. Recreational use by the public was therefore “by right” not “as of right”. It was irrelevant for that purpose that the permission could be withdrawn by an action on the part of the appellant, such as by fencing off the land: R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31; [2014] 2 WLR 1360; [2014] EGILR 33 applied.
(2) In any event, section 15 should not be interpreted as extending to the harbour since the registration of a town or village green would be incompatible for the statutory purpose for which parliament had authorised the acquisition and use of the land by the appellant. The question of incompatibility was one of statutory construction and did not depend on the legal theory that underpinned the rule of acquisitive prescription. By contrast with public rights of way and private easements, the owner of land which others wished to register as a town or village green did not need to have capacity to create such a green. However, where parliament had conferred on a statutory undertaker powers to acquire land compulsorily and use that land for defined statutory purposes, the 2006 Act did not enable the public to acquire by user rights which were incompatible with the continuing use of the land for those statutory purposes. Where there was a conflict between two statutory regimes, some assistance could be derived from the rule that a general provision did not derogate from a special one. There was a conflict between the 2006 Act and the statutory regime under which the appellant was given powers to operate a working harbour. Registration of the beach as a town or village green would make it a criminal offence to damage the green or interrupt its use and enjoyment for recreation. That could conflict with the appellant’s future exercise of its statutory powers as port authority. In those circumstances, the appellant’s passive response to the use of the beach by the public was evidence of an implicit permission for such use so long as it did not disrupt the appellant’s harbour activities.
Charles George QC and Philip Petchey (instructed by DMH Stallard LLP) appeared for the appellant; Stephen Sauvain QC and John Hunter (instructed by the legal department of East Sussex County Council) appearef for the first respondents; George Laurence QC and Edwin Simpson (instructed by Wellers Law Group LLP, of East Horsley) appeared for the second respondent.
Sally Dobson, barrister
