The Supreme Court has recently held that a beach within a harbour should not be registered as a town or village green. The decision in R (Newhaven Port and Properties Ltd) v East Sussex County Council and another  centred around whether the use of the land by the public was “as of right” and capable of registration as a town or village green in accordance with the Commons Act 2006.
Land can be registered as a town or village green where a significant number of local inhabitants have used the land “as of right” for lawful sports and pastimes for at least 20 years, under the Commons Act 2006. East Sussex County Council applied to register a Newhaven beach as a town and village green.
The landowner objected to the registration on the basis that the public had not been using the land “as of right”. It argued that local byelaws gave the public an implied licence to use the beach for recreational activities. The byelaws did not expressly allow the public to use the beach, but they prohibited activities (such as swimming) in certain areas of the harbour. The landowner argued that this implies that the public is permitted to use the beach for those activities outside the specified areas, and that consequently the public’s use of the beach is “by right”, not “as of right”.
The court agreed with this view. It also decided that, in this case, registering the beach as a town or village green would be incompatible with the statutory powers and duties of the landowner in operating a working harbour.
This case provides an example of when the public’s use of land is not “as of right”, which may be useful for landowners wishing to object to an application for registration of a town or village green. It also provides assurance for statutory bodies, that land cannot be registered as a town or village green if this would be incompatible with their statutory powers and duties.