Supreme Court: Newhaven’s West Beach is not a TVG

26th February 2015

Walker Morris has reported previously, in some detail, on the background to this Supreme Court case [1]. In short, Newhaven’s West Beach is part of a working harbour, whose owner (and the appellant in this case, “NPP”) is statutorily obliged to maintain the harbour. NPP closed the beach in 2008 and planned to develop the area as part of a wider port regeneration project. However Newhaven Town Council and East Sussex County Council sought to protect the area by registering it as a Town and Village Green (“TVG”) under the Commons Act 2006 (“the Act”). In March 2013 the Court of Appeal held that the beach was capable of registration as a TVG, but on 25 February 2015 the Supreme Court unanimously overturned that decision.

Much of the debate so far has centred on whether land that does not fit the typical scenario of the grassed village green and peaceful duck pond should be given TVG protection from development. The Court of Appeal gave such arguments short shrift and, whilst a headline glance at the Supreme Court’s judgment might give developers some encouragement, a closer look reveals that the ultimate position remains not quite development-friendly, and that the issues in play are not quite so straightforward.

Supreme Court Decision

In this appeal NPP asked the Supreme Court to find:

1. that the public enjoyed a permission or licence at common law to use the beach, such that use was not “as of right” (and could not, therefore, give rise to TVG registration); or, in the alternative
2. that the public enjoyed a licence arising from harbour byelaws; and
3. in any event, the Act cannot enable TVG registration if such registration would be incompatible with some other statutory function.

The court declined to determine the first issue. It was not necessary in this particular case as there was an alternative proposition, and a finding on the first issue could give rise to other problems [2]. However, the court noted that, although relevant legal cases were not binding on the Supreme Court, nevertheless they did not favour a finding for NPP on this issue, and in fact gave rise to the presumption that, so far as the general common law was concerned, members of the public did use the beach “as of right”.

So far as the second and third issues were concerned, the Supreme Court agreed with NPP.

The byelaws in question permitted the public’s use of the beach for bathing, even though such a licence was not express. Lords Neuberger and Hodge gave the example that a byelaw which states that a dog must be kept on a lead in a public park implies a permission to bring dogs into the park. By analogy, the byelaws in question prevented the public’s use of the beach arising “as of right” and they were, therefore, fatal to the TVG registration application.

In addition, the fact that the byelaws were not specifically brought to the attention of the public did not negate the existence of the public law right to go on to the beach for recreational purposes.

Finally, whilst the court was careful to note that ownership of land by a public body, such as a local authority, which has statutory powers that it can apply to develop land is not, of itself, sufficient to give rise to a statutory incompatibility argument to defeat a TVG registration [3], in this case NPP did hold the land as part of a working harbour, and TVG registration under the Act would be inconsistent with its statutory obligations in that regard.

WM Comment

• This decision of the Supreme Court is, we suggest, a victory for common sense and pragmatism. While NPP did not pursue the argument they had run in the lower courts that a tidal beach cannot be a town or village green under the Act ask any “speaker of ordinary English” (as Lord Neuberger put it) whether it should be and the answer would be a resounding “no”.
• As one would expect, considering that the same members of the Supreme Court heard both cases, the decision reinforces the same court’s findings in Barkas [4] to the extent that there is a difference between user “by right” and user “as of right”. The former use being insufficient to justify land being registered as a town or village green.
• The Supreme Court’s guidance as regards the statutory incompatibility argument is also welcome in so far as it is clear. Statutory powers which may facilitate development per se will not be enough to defeat a TVG application if such registration will not otherwise be inconsistent with the statutory purpose for which the land is held.

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[1] R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council & Anor [2015] UKSC 7
[2] paras. 31, 46 and 49 – 50
[3] para 101
[4] R (on the application of Barkas) (Appellant) v North Yorkshire County Council and another (Respondents) [2014] UKSC 31