Beaches can in principle be registered as "village greens", judge says

However Mr Justice Ouseley allowed the owner of the private West Beach in Newhaven to overturn the land's registration as a TVG because it was not compatible with the land's use as an operational port.

The beach was registered by East Sussex County Council in 2010 on the basis that Newhaven locals had used it "as of right" for "lawful sports and pastimes" over a 20-year period before it was fenced off for safety reasons in 2006.

Once land has been registered as a TVG, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the green or interrupt the public's use and enjoyment of it.

In his judgment (44-page / 471KB PDF), Mr Justice Ousley said that the law was less concerned with the character of the land than the "nature, quality and duration" of its recreational use.

"Parliament has chosen its words, on three occasions, so as to exclude any notion of a requirement that the registered green be 'grassy' or 'traditional'," he said, adding that it was not necessary to imply those words in order to "avoid absurdity or to give effect to a clearly ascertained Parliamentary purpose".

"Parliament may very well have intended to permit the registration of conceptually non-traditional town or village greens on the basis that if their recreational user satisfied the same statutory criteria, their lack of traditional qualities was no adequate basis for distinguishing them from other land that was registrable," he added. "The nature, quality and duration of the use was crucial; the quality of the land was unimportant."

He added that the lack of a fixed boundary on the area used for recreational purposes as a result of high or low tides did not prevent the registration of a fixed part of that area.

"If the low water mark recedes through accretion, the further land exposed will not form part of the registered green," he said. "If the beach is eroded, the lawful recreational use of what has hitherto been so used will become impossible; part of the registration may be redundant, and of historic interest only. That does not tell against the lawfulness of registration now."

“This decision reinforces the fact that just because land looks nothing like a traditional village green doesn’t mean that it can’t be registered as a village green," said property law expert Alister Bould of Pinsent Masons, the law firm behind Out-law.com. "Once it has been registered, the use to which the owner can put it is extremely limited."