Landmark case as port company successfully stops beach becoming a Village Green

 

The Supreme Court has unanimously overruled a decision by a County Council to register a beach as a village green, denying campaigners in their efforts to keep the beach open and avoid future development.

The situation concerned an application in 2008 by Newhaven Town Council to register West Beach as a town or village green on the basis that it had been used by a significant number of local inhabitants ‘as of right’ for a period of at least 20 years.

A number of locally relevant statutes and byelaws were taken into consideration, including:

  • The Newhaven Harbour and Ouse Lower Navigation Act 1847, which established harbour trustees with powers to maintain and support the town’s harbour and associated works.
  • The Newhaven Harbour Improvement Act 1878, which transferred these powers to the Newhaven Harbour Company. That Act also conferred on the Harbour Company the power to make byelaws in the manner prescribed by the Harbours, Docks and Piers Clauses Act 1847.
  • Byelaws made in 1931 regulating access to the harbour and the use of the harbour for (among other things) fishing, playing sports or games and dog walking.
  • A statutory instrument in 1991 (“the 1991 Newhaven Order”) which vested the harbour in Newhaven Port and Properties Limited (NPP), the appellant.

West Beach forms part of the operational land of the harbour, and is subject to statutory provisions and to the 1931 byelaws, which means that NPP is obligated to maintain and support the harbour and retains responsibilities including the dredging of the sea bed and the foreshore.

In the High Court, Mr Justice Ouseley rejected all but one of the arguments against registration advanced by the company. The judge held that registration of the beach was subject to the authority’s byelaw-making powers and existing byelaws. As such, its registration was incompatible with the statutory powers and the beach was outside the scope of the 2006 Act – thereby denying the registration.

Whilst East Sussex and the town council appealed successfully against Mr Justice Ouseley’s ruling at the Court of Appeal, a further appeal was then made to the Supreme Court on the following grounds. Either:

  1. the public enjoyed an implied licence to use the foreshore and therefore the use was not ‘as of right’;
  2. the public enjoyed an implied licence arising from the byelaws and therefore the use was not ‘as of right’; or
  3. in any event, the Commons Act 2006 could not be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function.

The Supreme Court unanimously upheld the appeal, on both the second and third grounds, therefore ending the matter with denial of registration. Unfortunately, this means that local residents will be unable to protect the beach from future development.

The NPP commented:

“The Supreme Court has confirmed that land which forms part of a statutory undertaking and is part of the harbour within the statutory limits and land which is controlled by byelaws, cannot be registered as a village green.

“NPP appreciates this decision will be a disappointment to campaigners.”

But Norman Baker, local Liberal Democrat MP for Lewes, is not giving up:

Norman Baker, Liberal Democrat MP for Lewes, said:

“The battle carries on. This is Newhaven’s beach. People have grown up with this beach, they want it back.

“I am going to carry on until we get it back. I am going to see the port manager to try to negotiate access to the beach. This issue will not go away,”

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SRJ                                                                                                                              05.03.2015

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