Out-Law News | 25 Feb 2015 | 3:39 pm | 4 min. read
In England and Wales, the 2006 Commons Act allows land used by the public for recreational purposes 'as of right' to be registered as a TVG, restricting further development. However, the Supreme Court unanimously ruled that the Newhaven public had been granted use of West Beach 'by right', through local bylaws permitting use of what remained private land for sports, dog walking and other activities.
Property litigation expert Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, said that the Supreme Court had reached the "common-sense conclusion that this operational port should not be registered as a village green".
"The Supreme Court reached this decision on the basis that recreational use of a beach by members of the public was effectively pursuant to statutorily-imposed permission, even if individuals may not have been made aware of it; rather than use 'as of right', giving rise to a claim for village green registration. It was also good to see the court question whether foreshore might even be used 'as of right' for village green purposes and consider the impact of registration on the active port," he said.
"However, it remains a concern that, as a consequence of the state of the law in this area, the village green registration of a port should have been entertained all the way to the highest court in the land and, barring the effect of the statutory permission, the Supreme Court might possibly have felt compelled to allow land at an operational port to be registered," he said.
Section 15 of the Commons Act allows members of the public to apply for registration of land as a TVG if that land has been used by a significant number of local inhabitants for lawful sports and pastimes over a period of at least 20 years. However, that land must have been used "as of right" rather than 'by right'. This means that the right must have come through use by the local community and not by way of specific permission from the landowner.
West Beach had been registered as a TVG by East Sussex County Council in 2010 on the grounds that the land had met the statutory criteria for more than 80 years before it was fenced off by the owner, Newhaven Port and Properties Ltd (NPP), in 2010. NPP now intends to further develop the operational port adjacent to the beach. In 2013, two of three judges in the Court of Appeal ruled that this usage was 'as of right'. NPP appealed to the Supreme Court, arguing that the public had implied permission to use the beach through the operation of local byelaws.
One of the issues that the five judges in this case had to rule on was whether the fact that the byelaws were not brought to the public's attention through display on boards or notices at the beach affected their operation. On this, the Supreme Court referred to laws providing that byelaws "become effective once they are confirmed", and agreed with the Court of Appeal's earlier finding that it would be "highly improbable" that byelaws should not apply "if, for instance, the boards displaying them had been destroyed or washed away by a storm, or even pulled down by vandals".
According to previous case law, it is "not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of the land concerned was permitted" in order for the use to be treated as being 'by right'. Previous cases dealt with where land had been acquired and partly developed for housing purposes under laws permitting any undeveloped part of that land to be used as "recreation grounds" with ministerial consent. The judges said that the Newhaven case was "indistinguishable" from those cases on this point.
"The fact that the right arose from an act of the landowner … does not alter the fact that the ultimate right of the public is a public law right derived from statute," the Supreme Court said in its judgment.
"[O]nce one concludes that there is 'an implied revocable permission' for an activity, it follows that there is a licence, which renders the activity in question being carried on 'by right' not 'as of right'. The fact that permission can be subsequently withdrawn by an action on the part of the authority, such as fencing off, merely means that, when and if that occurs, the permission is withdrawn, so that any subsequent continuation of the activity concerned becomes a trespass and would therefore normally be 'as of right'," the court said.
Although none of the byelaws specifically gave members of the public the right to use the beach for the purposes of bathing and recreation, the fact that byelaws existed restricting these activities in certain circumstances implied that they were otherwise unrestricted, the court said.
"A normal speaker of English reading the byelaws would assume that he or she was permitted to bathe or play provided the activity did not fall foul of the restrictions in the two byelaws (and in any other byelaws)," the court said. "The conclusion is further reinforced by the fact that, at the time the byelaws were made, members of the public had been and were using the beach freely for the purpose of bathing and recreation."
The court also considered an argument by NPP that the beach could not be registered as a TVG in the first place as to do so would interfere with its use as an operational port. This argument was unanimously rejected by the Court of Appeal, but the Supreme Court disagreed. Noting that the registration of the beach as a TVG would "clearly impede the use of the adjoining quay to moor vessels", amongst other necessary activities; it said that there was "a clear incompatibility between NPP's statutory functions in relation to the harbour, which it continues to operate as a working harbour, and the registration of the breach as a [TVG]".