R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council

Town and village greens – Registration of land – Section 15 of the Commons Act 2006 – Defendant council granting application by town council for registration of tidal beach as town or village green – Claimant owner seeking judicial review of decision to register – Whether tidal beach satisfying statutory requirements of town or village green – Whether registration conflicting with statutory functions of claimant – Claim allowed On 22 December 2010, the defendant 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 first interested party) which was supported by significant evidence that West Beach had been used by local inhabitants as of right for lawful sports and pastimes for at least 20 years until in April 2006. That was when the claimant company, which owned and operated Newhaven Port, fenced off public access to West Beach, claiming that the sea wall was in a condition which would make such access dangerous.The claimant was the only objector to the application. After a non-statutory public inquiry, an inspector appointed by the defendants reported to the commons and village green registration panel, with a recommendation that the application be approved. That recommendation was accepted by the defendants.The claimant applied for judicial review of the defendants’ decision to register the beach contending, inter alia, that: (i) the land in question was a tidal beach which could not be registered as a town or village green, on the proper construction of the 2006 Act, since a town or village green had to be an area, mainly of grass, in or on the edge of a town or village; and (ii) since the beach was part of the operational land of the port and subject to the port authority’s byelaw-making powers and existing byelaws, registration as a town or village green was incompatible with its statutory powers and rights. Held: The claim was allowed. (1) The words used by Parliament to define “town and village green” in section 15 of the Commons Act 2006 were broad enough to permit the registration of a tidal beach as a town or village green provided that the nature, quality and duration of the recreational use satisfied the statutory test. The resultant registration could only be displaced by reading words into the 2006 Act for which there was no coherent legal basis. There was no requirement that land in respect of which registration was sought had to be either grassy or consistent with traditional notions of what constituted a village green, even if the land in question was wholly covered in water for part of the day.Parliament had chosen its words, in the 2006 Act and the two preceding Acts, so as to exclude any notion of a requirement that the registered green be “grassy” or “traditional”. There was no necessity for such words to be implied to avoid absurdity or to give effect to a clearly ascertained Parliamentary purpose. Parliament might have intended to permit the registration of conceptually non-traditional town or village greens on the basis that, if their recreational use satisfied the same statutory criteria, their lack of traditional qualities was no adequate basis for distinguishing them from other land which was registrable. The same conflict between landowner and recreational user had to be resolved in the same way. The nature, quality and duration of the use was crucial; the quality of the land was unimportant.  Accordingly, West Beach was not excluded from registration under the 2006 Act because it was not a traditional green or grassy, nor was it excluded because it was covered in water for part of the day and wholly uncovered for only a short period of the day: Oxfordshire County Council v Oxford City Council [2006] PLSCS 125; [2006] 22 EG 177 (CS); [2006] 2 EGLR 95 and Leeds Group plc v Leeds City Council [2011] EWCA Civ 1447; [2011] PLSCS 298 applied.(2) However, in the context of an application for registration of land as a town or village green under section 15, it was not possible for the public to acquire rights by 20 years’ user to the likely detriment of the statutory functions pursuant to which the landowner owned the land in the public interest. If there was a likelihood, or if it was reasonably foreseeable that the fact of registration under the 2006 Act would give rise to a future conflict with the statutory purpose for which the land was owned by the claimant, namely the operational use of the port land, the land would not be registrable as a town or village green. In the present case, whether expressed as a question of statutory capacity or powers, or the unlawful fettering of its powers, the claimant could not permit the use of land as of right for recreational purposes because, on the evidence, it was reasonably foreseeable that that would conflict with its statutory functions. It had no power to give an actual or implied consent to that use and, appearances to the contrary, could not be taken to have done so. One group of the public could not acquire rights against the general public interest measured by the existence of statutory powers which were reasonably foreseeably inconsistent with the rights they asserted. In those circumstances, no rights had lawfully been acquired nor any use of the land in question carried on without a necessarily implied permission. Accordingly, West Beach could not be registered as a village green: British Transport Commission v Westmoreland County Council [1958] AC 126 followed.Charles George QC and Philip Petchey (instructed by DMH Stallard Solicitors) appeared for the claimant; Stephen Sauvain QC and John Hunter (instructed by the Director of Legal and Democratic Services, East Sussex County Council) appeared for the defendants; Edwin Simpson (instructed by Hedleys Solicitors LLP, of East Horsley) appeared for the first interested party; David Forsdick (instructed by the Treasury Solicitor) appeared for the second interested party.Eileen O’Grady, barrister