R (on the application of Newhaven Port & Properties Ltd) v Secretary of State for the Environment, Food and Rural Affairs

Town or village green – Commons Act 2006 – Registration – Human rights – Beach registered as town or village green under section 15(4) of 2006 Act – Whether section 15(4) contravening appellant landowner’s right to peaceful enjoyment of possessions under Article 1 of First Protocol to European Convention on Human Rights – Appeal dismissed In December 2010, the first interested party, as registration authority, approved an application by the second interested party 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. The relevant period ran up to April 2006, 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: see [2012] EWHC 647 (Admin); [2012] PLSCS 72.The Court of Appeal subsequently reinstated the registration decision, holding 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: see [2013] EWCA Civ 276; [2013] 2 EGLR ??? In a separate appeal hearing, the appellant challenged the finding of the judge below that the “transitional provisions” of section 15(4) of the 2006 Act, dealing with registration where the relevant 20-year period of use had ceased before the Act came into force, 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. The appellant contended that the effect of section 15(4) was to deprive it of the statutory defence by which it could have defeated any application for registration that had been made before the section came into force, namely by demonstrating that the public use had not continued until the date of the application. The appeal on that ground was resisted by the secretary of state as respondent.  Held: The appeal was dismissed.(1) Section 15(4) of the 2006 Act involved an interference with a landowner’s peaceful enjoyment of its possessions, so as to engage Article 1 of the First Protocol to the Convention, since it significantly restricted the activities that the owner could carry out on the registered land. Although the registration of a TGV did not deprive the landowner of any possession, because legal title remained with the landowner, registration did involve a control of the use of property falling within the second paragraph of Article 1. The state had a right to control the use of property in the general interest, under conditions provided for by law, provided it struck a fair balance between that interest and the interests of the property owner. The relevant legislation had to pursue a legitimate aim by means that were reasonably proportionate to achieving that aim. Where, as in the instant case, social and economic policy was involved, the court should respect the legislature’s judgment on what was in the public interest unless the aim pursued and the means of achieving it were manifestly without reasonable foundation: James v United Kingdom (1986) 8 EHRR 123, AXA General Insurance Ltd v Lord Advocate (Scotland) [2011] UKSC 46; [2012] 1 AC 868, JA Pye (Oxford) Ltd v United Kingdom [2008] 1 EGLR 111 and Salvesen v Riddell [2013] UKSC 22 applied.Although legislation that was retroactive in effect would require special justification, it was not necessarily incompatible with Article 1; the court would have to evaluate the degree of unfairness, if any, that resulted from the retrospective or retroactive effect of the legislation: Bäck v Finland (2004) 40 EHRR 1184 applied. In that regard, legislation that restored the legal position to that which it had previously been understood to be was less objectionable than legislation that changed the law: AXA General Insurance applied. The availability of compensation for the control of property was relevant but not mandatory. A further matters that would be relevant when assessing proportionality was whether the complainant could have taken action to avoid the predicament in which it found itself, either before the contested legislation was enacted or before its effects were felt: Leeds Group plc v Leeds City Council (No 2) [2011] EWCA Civ 1447; [2012] 1 WLR 1561; [2011] PLSCS 285 and JA Pye applied.(2) Applying the foregoing principles, section 15(4) of the 2006 Act did not contravene Article 1. The overall aim of the 2006 Act was to legitimise long recreational use by local inhabitants of open spaces, provided that the use had continued as of right for a period of 20 years. A policy that recognised and regularised a long-standing state of affairs was a legitimate aim. That was even more the case where the long-standing state of affairs was itself dependent on the acquiescence of the landowner and the rights created by the regularisation of that state of affairs were effectively public rights. In addition, the policy of section 15(4) could be said to represent a tenable view of the law as it had stood before it had been changed by the Countryside and Rights of Way Act 2000. Where the relevant public use of land had ceased after the 2006 Act came into force, section 15(3) provided local inhabitants with a two-year period of grace after such cessation in which to make an application for registration, with the legitimate aim of giving them a fair opportunity to made such an application, by giving them time to do the necessary research and gather the necessary evidence in support. In providing a longer period of grace of five years, where the use had ceased before the 2006 Act came into force, section 15(4) likewise pursued a legitimate aim that took account of the fact that the threat to the local inhabitants’ continued use would not have been as obvious as in cases of post-Act cessation. The legislation pursued a further legitimate aim so far as it clarified the law and resolved the position of considerable uncertainty that had existed prior to its enactment. Moreover, the effect of section 15(4) was proportionate to the legitimate aims that it pursued. Each of the gateways to registration took, as its starting point, the fact that the landowner had acquiesced in public recreational use for at least 20 years. It would have been open to the landowner, before expiry of the 20-year period, to prevent the use from being “as of right” by granting permission or barring access. Section 15(4) was predicated on the assumption that the landowner had not availed itself of that opportunity. Where there were relevant byelaws in force that amounted to permission for the uses on which the local inhabitants relied, the appellant could have eliminated the whole problem had it communicated that permission to the public by displaying the byelaws on the quayside or sea wall. The fact that the appellant’s predicament had come about because of its own acquiescence in a long-standing state of affairs also mean that the case for compensation was weak. By the time the appellant had eventually barred access to the beach, the draft legislation had been in substantially the same form as the eventual enactment and the appellant had not been lulled into any false sense of security; it had been aware that barring access would not prevent registration of the beach as a TGV.Sofar as section 15(4) provided a longer period of grace in which to make an application, when compared with section 15(3), that too was proportionate. The two subsections did not deal with the same situation. Had the period of grace been limited to a short period after the cessation of the use as of right, which would include cases where the use was continuing but had ceased to be as of right because it had become permissive, it might have been of very little practical benefit. Moreover, since the period of grace ran from the date when the use ceased to be as of right, rather than from the date of the Act, many groups of inhabitants would in fact have had much less than five-years post-Act in which to make their application. Further, in cases falling within section 15(4), section 15(5) conferred a substantial measure of protection on landowners so far as there were planning permissions or works to develop the land. Section 15(4) therefore pursued a legitimate aim by means that were not manifestly without reasonable foundation. Charles George QC and Philip Petchey (instructed by DMH Stallard LLP) appeared for the appellant; Tim Buley (instructed by the Treasury Solicitor) appeared for the respondent. Sally Dobson, barrister