On 25 February 2015, the Supreme Court handed down its decision in the case of R v East Sussex[1]This was the culmination of a long running dispute over whether a tidal beach could or could not be a town or village green (“TVG”).

In the Court of Appeal in 2013, it was held that a tidal beach in Newhaven, East Sussex could be a TVG.  The port authority (which owns the beach) appealed this decision and the Supreme Court found in their favour – why?     

THE FACTS

The case relates to a beach forming part of Newhaven port in East Sussex.  The beach is tidal and is fully covered by the sea for 42% of each day.  When not covered in water, local people use the beach for dogwalking and other recreational activities.

The beach is subject to byelaws created by the port authority (dating from 1931) which regulate access and use of the beach.  In particular they prohibit bathing in certain areas, sports or games which obstruct or impede the use of the harbour and stop people from bringing dogs onto the beach unless securely fastened.

East Sussex County Council applied to register the beach as a TVG on the basis it had been used by local inhabitants, as of right, for lawful sports and pastimes for at least 20 years (as required by the relevant legislation (the Commons Act 2006 and the Growth and Infrastructure Act 2013).  The High Court rejected the decision and the Council appealed.   

THE APPEAL

A key decision of the Court of Appeal (which still stands following the Supreme Court’s judgment) was that a TVG does not need to be a predominantly grassy area – this was not a requirement of the relevant legislation.

A second key issue in the Court of Appeal’s decision related to the requirement that for registration as a TVG, the relevant sports and pastimes must have been undertaken as of right (without permission, force or secrecy).  The Court of Appeal held that the 1931 byelaws did not go far enough to imply permission and therefore upheld the appeal.

THE SUPREME COURT

The port authority appealed on three grounds.  One of the grounds was again on the basis that the 1931 byelaws implied permission to use the beach.  The Supreme Court found in favour of the port authority – although there were no byelaws expressly permitting the use of the beach, they created an implied permission.  The Supreme Court held that the byelaws would not make sense if there was no implied permission – e.g. sports and games were permitted so long as they did not impede the use of the harbour; dogs were permitted if securely fastened.   

The Supreme Court also decided that the TVG legislation (in particular section 15 of the Commons Act 2006) did not apply to land acquired by a body held for statutory purposes that were inconsistent with registration as a TVG.  Where Parliament had given a body statutory powers to make byelaws to govern the use of its land, the TVG legislation could not cut across that by allowing the public to acquire rights which were inconsistent with the statutory use of the land.     

WHAT DOES THIS MEAN FOR LANDOWNERS AND DEVELOPERS?

The decision in Newhaven will come as a great relief to landowners and in particular statutory bodies.  If a body owns land and has the ability to make byelaws (e.g. local councils, port authorities, airports, statutory undertakers and charities) or has statutory powers/duties relating to its land, and if registration as a TVG is incompatible with those byelaws, duties or powers or they even just imply permission to use the land, then the land cannot be registered as a TVG. 

The decision will, however, come as a real blow for campaigners.  It represents a further swing in favour of developers and landowners when it comes to TVGs (following other recent cases and the new regime introduced by the Growth Infrastructure Act 2013).  TVG applications are likely to be used much less as a tactic to prevent development by local groups.    

This does not mean that developers should rest on their laurels though – if seeking to acquire land for development, a commons registration search should always be carried out and if there is any suspicion of registration as a TVG (or any application to do so), appropriate enquiries should always be raised before contract.