Development: Newhaven Port Beach was not a village green

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

The Supreme Court has found that Newhaven Port Beach (the Beach) could not be registered as a town and village green because:

1. the public had been using the Beach "by right", under an implied permission of the port authority rather than "as of right"; and
2. registration as a town or village green would have conflicted with the port authority's statutory obligation to maintain and develop the harbour.

This decision (R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council) is further evidence of a movement towards protecting landowners from town and village green applications which seek to hinder development of land.

Landowners with the authority to do so may attempt to prevent town and village green applications by making green spaces subject to certain bye-laws and therefore making it clear that the public is using the space under an implied licence, and therefore "by right" rather than "as of right".

The court was satisfied that it is possible that a tidal beach could be classed as a town or village green under the Commons Act 2006 (the CA 2006).

The Beach forms part of the Newhaven Port Harbour. The Harbour is administered by Newhaven Port and Properties Limited (NPP). In December 2008, Newhaven Town Council applied to register the Beach as a town or village green on the basis that it had been used by local inhabitants "as of right" for a period of at least 20 years. NPP objected to the registration.

Section 15(2) of the Commons Act states that anyone may apply to register land where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and they continue to do so at the time of the application. Importantly "as of right" means without specific permission from the owner.

In the first instance, the County Council registered the Beach as a village green. The appeal made its way to the Supreme Court, which decided that:

1. the public had an implied licence to use the Beach as part of the Harbour under local bye-laws; and
2. section 15 of the CA 2006 cannot be used to enable registration of land as a town or village green if such registration was incompatible with some other statutory function to which the land was to be put.

The public law right created by the bye-laws meant that the public used the Beach with implied permission from the NPP despite the fact that the bye-laws were not brought to the public's attention. In the Supreme Court, Lord Neuberger quoted his own judgment in R (Barkas) v North Yorkshire County Council, stating that: "where land is held by a local authority for a statutory purpose and members of the public use that land for that purpose, the obvious and natural conclusion is that they enjoy a public right or a publicly based licence. If it were not so, members of the public using the land for recreation would be trespassing which cannot be correct."

Applying that logic to the current issue, Neuberger held that since beachgoers were using the Beach by licence of NPP, they could not claim rights by prescription.

Registering the Beach as a town or village green would have made it a criminal offence for NPP to interrupt the use of the Beach by the public or damage the Beach, which would be in direct conflict with NPP's statutory purpose to develop the harbour. The legislation under which NPP was granted its powers and owed its duties pre-dated the CA 2006 and was not specifically repealed by it so NPP was still bound by it.

NPP's passive response to the public's use of the Beach was evidence of an implicit permission, as long as the public didn't disrupt the Harbour activities. There was no user "as of right" by the public of the Beach that had interfered with the activities of NPP.

Implications for developers and landowners

Campaigners often use town and village green applications to protect green spaces and frustrate developers.

For landowners and developers, this may be a step towards a reduction in the number of successful town and village green applications. Following this decision, landowners with the authority to do so may create bye-laws in respect of the land which make it abundantly clear that the public is using the land by permission of the landowner rather than as of right, in an attempt to stop prescriptive rights being obtained.

This decision, together with the introduction of further limitations under the Growth and Infrastructure Act 2013, suggests that there is a movement towards protecting landowners from town and village green applications; however, developers should not rest on their laurels and should ensure that all steps are taken to reduce the risks of an application sterilising their land.