Registration - Town or village green - Defendant local authority deciding to register area of beach as village green
Newhaven Port and Properties Ltd v East Sussex County Council: QBD (Admin) (Mr Justice Ouseley): 21 March 2012
The instant proceedings concerned an area of beach known as West Beach. In 2006, the defendant local authority decided to register West Beach as a town or village green under the Commons Act 2006.
The authority had decided to register the beach after receiving an application from Newhaven Town Council. That application had been supported by significant evidence that West Beach had been used by local inhabitants as of right for lawful sports and pastimes for a least 20 years expiring in April 2006. It was on that date when the defendant, which owned and operated Newhaven Port, had fenced off public access to West Beach. The land was part of the operational land of the port, and was subject to the bylaw making powers of the claimant as port authority. The claimant was concerned about the safety of the steps down from the harbour wall to the beach, and the wash from the ferry over the application area.
The registration of the area as a village green could, it feared, carry with it an obligation to permit access to the beach and thus to make the route safe; and it could carry a public liability to ensure the safety of those exercising rights, with consequent effects on the operation of the port. Further, as port authority, it had plans for the future development of the port which were likely to require works extending into the application area. The registration of the area as a village green could prevent it exercising those powers, were that to interfere with the exercise of the recreational rights. The claimant challenged the decision to register West Beach as a village green.
The claimant contended, inter alia, that the registration of the land as a village green would not be compatible with it being operational port land. There would be a conflict inherent between registration as a village green, and the consequential power to make bylaws under the Commons Act 1899, and the power to make bylaws under the Harbours Docks and Piers Clauses Act 1847, among other statutory powers. Consideration was given to British Transport Commission v Westmoreland County Council  2 All ER 353 (BTC) in which it was held that a private right of way over land held for a special statutory purpose under a private act of parliament could be presumed to have become dedicated as a public right of way, as a result of public use; the special status of the land did not of itself prevent dedication, so long as dedication in that way was not incompatible with the statutory purpose. The claim would be allowed.
It was established in BTC that the test was whether, on an examination of the specific facts, there was at least a likelihood, or it was reasonably foreseeable, that such a grant would conflict with the statutory objects for which the land was held so that the two interests would be in conflict. The grant or implied permission could not be effective if there were any reasonably foreseeable circumstances in which it would hinder or conflict with the statutory functions for which the land was held. It was only where that was not reasonably foreseeable that no conflict existed in law (see ,  of the judgment).
In the instant case, since registration was not compatible with the statutory purpose for which the land was held by the claimant, it could not be registered. In the circumstances, 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 the land as of right for recreational purposes because 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 could not be taken to have done so. No rights had lawfully been acquired or no use of the land carried out without a necessarily implied permission (see , ,  of the judgment). The authority’s decision would be quashed (see  of the judgment).
Per curiam: ‘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 which was registrable. The same conflict between landowner and recreational user should be resolved in the same way. The nature, quality and duration of the use was crucial; the quality of the land was unimportant… Accordingly, I am of the view that West Beach is not excluded from registration because it is not a traditional green or grassy. Nor is it excluded because it is wholly covered in water for part of the day and wholly uncovered for only a very short period of the day’ (see ,  of the judgment).
Charles George QC and Philip Petchey (instructed by DMH Stallard Solicitors) for the claimant; Stephen Sauvain QC and John Hunter (instructed by the legal services department of East Sussex County Council) for the local authority; Edwin Simpson (instructed by Hedleys Solicitors) for the first interested party, Newhaven Town Council; David Forsdick (instructed by the Treasury Solicitor) for the second interested party, secretary of state for environment, food and rural affairs.
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