Town and village greens – Registration of land – Section 15 of the Commons Act 2006 – First appellant council granting application by second appellant for registration of tidal beach as town or village green – Respondent owner obtaining judicial review of decision to register – Whether tidal beach satisfying statutory requirements of town or village green – Whether judge erring in law – Appeal allowed by a majority
In December 2010, the first appellant local authority decided to register land known as West Beach at Newhaven as a town or village green pursuant to section 15 of the Commons Act 2006, following an application by the town council (the second appellant) which was supported by significant evidence that the beach had been used by local inhabitants as of right for lawful sports and pastimes for at least 20 years until April 2006. That was when the respondent company, which owned and operated Newhaven Port, fenced off public access to the beach, claiming that the sea wall was in a dangerous condition.
The respondent was the only objector and, after a non–statutory public inquiry, an inspector appointed by the first appellants reported to the commons and village green registration panel, with a recommendation that the application be approved. The respondent was subsequently granted judicial review of the first appellants’ decision to register the beach: [2012] EWHC 647 (Admin); [2012] PLSCS 72.
The appellants appealed. The questions for the court were: (i) whether a tidal beach could be a town or village green; (ii) whether use of the foreshore was subject to the rebuttable presumption that it was by permission of the Crown or its successor in title; (iv) Whether the beach was registrable on the facts relating to its use; (iii) whether the byelaws rendered use of the land precarious and not as of right; and (v) whether the lack of a right of access precluded use of the land as of right.
Held: The appeal was allowed by a majority (Lewison LJ dissenting).
(1) The judge’s reasoning had been seriously flawed, in so far as he had been considering the matter in terms of capacity to grant rights and to give permission or consent to the use. Unlike the law relating to public highways and private rights of way, registration as a town or village green did not depend on actual or presumed grant or on actual or implied dedication but on use of a specified character over a specified period. Since absence of permission was an essential condition of the use on which registration as a town or village green was based, the fact that the landowner lacked capacity could not operate to defeat such registration.
If Parliament had wished to preclude registration of land as a town or village green on grounds of incompatibility with the landowner’s statutory functions it would have included express provision to that effect. Further, there was no reason why, in a context where the acquisition of prescriptive rights did not depend on actual or presumed grant, the landowner’s lack of capacity to make a grant should preclude the acquisition of such rights. Whilst the court did not underestimate the consequences that registration of the beach as a town or village green might have on the future discharge of the respondent’s statutory functions, those consequences did not provide a proper ground for holding that the land was not registrable: R v Inhabitants of Leake (1833) 110 ER 863; British Transport Commission v Westmorland County Council [1958] AC 126; and Western Power Distribution Investments Ltd v Cardiff County Council [2011] EWHC 300 (Admin); [2011] PLSCS 60 distinguished.
(2) Under section 15 of the Commons Act 2006 (with which the present case was concerned), the definitional link with elements of the traditional village green in section 22 of the Commons Registration Act 1965 had been removed. Registration depended simply upon meeting statutory conditions that were expressed without reference to a town or village green: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] PLSCS 125; [2006] 22 EG 177 (CS) considered.
(3) Neither the absence of any general common law right in respect of use of the foreshore for recreational purposes nor the history of tolerance of such use precluded a finding that recreational use of a particular beach was use as of right, if such a finding was otherwise justified by the evidence. The judge’s reasoning and conclusion in respect of the use of the land had been correct: Beckett (Alfred F) Ltd v Lyons [1967] 1 Ch 469, Mills v Silver [1991] Ch 271, R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 considered.
(4) Whilst on their proper construction the relevant byelaws impliedly permitted the public to access the harbour and engage in various sports and activities, they did not confer any right to do so. On the inspector’s findings of fact, there had been nothing by way of display or enforcement of the byelaws during the relevant 20 year period to indicate that use of the beach was subject to the permission of the landowner. The inspector had therefore been right to find that the byelaws did not have the consequence that such use was precarious and not use as of right: R v Secretary of State for the Environment, ex p Billson [1998] PLSCS 45 and Barkas v North Yorkshire County Council [2012] EWCA Civ 1373; [2013] 02 EG 68 considered.
(5) There had been ample evidence to justify a finding of use of the beach as of right, irrespective of whether a right of access to it had been established. Therefore, the registration authority had been entitled to proceed to a decision without reaching its own view as to the existence or otherwise of a right of way and without waiting for a determination of the application to modify the definitive map.
Stephen Sauvain QC and John Hunter (instructed by Legal and Democratic Services, East Sussex County Council) appeared for the first appellants; George Laurence QC and Edwin Simpson (instructed by Hedleys Solicitors LLP, of East Horsley) appeared for the second appellant; Charles George QC and Philip Petchey (instructed by DMH Stallard Solicitors) appeared for the respondent.
Eileen O’Grady, barrister
