2014 was a busy year for the Supreme Court as regards Town and Village Green (TVG) decisions. The year started with two cases in the matters of Paddico and Betterment Properties, which was heard in January and the judgment given in February followed by the case of Barkas which was heard in April with the judgment given in May.
The latest decision, in the matter of West Beach in Newhaven (the Newhaven Case) was heard in November and the judgment given 25 February 2015.
All three cases are worthy of note. Paddico and Betterment Properties deal with rectification of TVG registration notwithstanding significant time lapses between TVG registration and the application to rectify the register; Barkas clarifies the issue of use “as of right” and use “by right” and, just as importantly confirms the reasoning in Beresford (regarding implied licence and use) should no longer be relied upon.
The latest decision in the Newhaven Case considered three specific issues:
- User as of right or by right (and whether or not an implied licence had been revoked);
- Implied licence in the light of the byelaws; and
- Whether or not registration pursuant to S15 of the Commons Act 2006 would be incompatible with some other statutory function.
West Beach at Newhaven is part of operational land of the harbour which is owned by Newhaven [port and Properties Limited (NPP) and is subject to statutory provisions and byelaws. The beach was created after the construction of a breakwater in the late 1880s, by sand being held by the breakwater. Access to the beach included steps from the harbour wall leading to and from a car park also owned by NPP. The use of the beach was agreed to be use of the foreshore (between high and low water mark, an area of land usually owned by the Crown).
The Court considered three options in considering the public’s right to bathe (plus associated recreational activities). First whether members of the public have a right to use the foreshore for bathing. Secondly, if an implied licence had been given (or if the presumption could be rebutted) and thirdly whether the public had no right to use the foreshore for bathing on the basis their rights were limited to access for navigation. The Court decided not to determine the first issue; on the second issue it found that members of the public used the beach for bathing as of right. However, this finding was subject to the third issue of the byelaws and whether or not TVG registration would be incompatible with some of them or some other statutory function.
NPP argued the byelaws amounted to a licence or permission to members of the public to use the beach. The original decision of the Inspector considered the issue of the byelaws and came to the conclusion that the byelaws could not be relied upon as they had not been brought to the public’s attention. The Court however decided otherwise – that the byelaws could be relied upon as giving a licence for recreational activities associated with beaches. The Court also confirmed that it would be necessary to exhibit the byelaws on a board to justify a prosecution under the byelaws but that not exhibiting the byelaws would not be fatal to the argument that use of the breach was “by right” and on that point this case was “undistinguishable from that in Barkas …” . The Court went on to express an important caveat, that once permission had been withdrawn any subsequent continuation of the use would be “as of right”. Having allowed NPP’s appeal on this ground it was unnecessary for the Court to consider statutory incompatibility but the point was considered important (and had been fully argued) and the Court proceeded to find in favour of NPP on this ground as well.
It should be remembered that registration of the beach as a TVG “would make it a criminal offence to damage the green or interrupt its use and enjoyment as a place for exercise and recreation …”. In the Newhaven Case the land was held by a statutory undertaker. The question asked by the Court was “does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green?. The Court found that it did not and that the 2006 Commons Act was incompatible with the statutory regime which gave NPP statutory powers to operate a working harbour. These powers included dredging of the sea bed and the foreshore. TVG registration would also “clearly impede the case of the adjoining quay to moor vessels.”.
The Court went on to consider the issue of land owned by a public body such as a local authority, which has statutory powers to develop land and states that this “of itself is not sufficient to create a statutory incompatibility”. This point should be considered in relation to Barkas where the owner of the land in question, in that case a local authority, held the land for a specific purpose (recreational use). The use of the land by the public in Barkas was held to be “by right” and therefore the TVG claim was defeated. Had the challenge in Barkas solely been based upon statutory incompatibility it is likely, based upon the reasoning in the Newhaven Case, that that argument would have been unsuccessful.
The Court’s decision in Newhaven is already raising questions regarding whether a beach can be a village green. Had the Court found that members of the public had the right to bathe on the foreshore, such a decision would have had implications for all beaches and the owners of those beaches. As no decision was made on that point, it follows that some beaches in certain circumstances may well still be susceptible to applications for TVG registration.
As regards land owned by public authorities, they should be advised to review their land holdings and ensure the land is held for a specific public use pursuant to a particular statutory power, if further TVG claims are to be resisted.