On 27 March 2013 in the case of R (Newhaven Port and Properties Ltd) v East Sussex County Council and another [2013] EWCA Civ 276 the Court of Appeal overturned a decision of the High Court and held that a tidal beach was capable of being registered as a town or village green under the Commons Act 2006. The port authority who owned the foreshore argued that registration under the Act was not permissible, and would have conflicted with its statutory powers and duties. A majority in the Court of Appeal disagreed.

Common land

The Commons Act 2006 ("CA 2006") is being introduced in stages and is intended to replace all of the provisions of the Commons Registration Act 1965. Section 15(4) of the CA 2006 provides that anyone can apply to register land as a town or village green where "a significant number of inhabitants of any locality... indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; they ceased to do so before the commencement of this section; and the application is made within the period of five years beginning with the cessation..." The section came in to force on 6 April 2007.

Life is a beach

As part of the port development at Newhaven in East Sussex, a breakwater was constructed in 1883 and caused a bank of sand to establish on the coast. This area is known as West Beach and as a tidal foreshore it is covered by sea water 42% of the day – only being fully uncovered for a matter of minutes. The application to register the land as a town or village green was made by East Sussex County Council with supporting evidence of use from Newhaven Town Council. It was opposed by the landowners, Newhaven Port and Properties Limited ("the Port"), and they launched a judicial review.

In the High Court the Port was successful on one of eight grounds for review, namely that the registration of West Beach by the Council as a town or village green was incompatible with and would conflict with the Port's statutory powers and duties. There was no express provision that statutory duties should be considered on registration in the CA 2006, but Mr Justice Ousley held this could be implied. As there was a conflict registration could not go ahead. The County and Town Councils applied to appeal the ruling.

Court of Appeal decision

The Court of Appeal held by a two to one majority that there was no basis for the High Court to imply a qualification in to the CA 2006 that incompatibility with statutory functions and obligations would be grounds to quash an application to register common land. They also held that there was no obligation, as the Port argued, that a town or village green had to be predominantly grassy or in a village or town location. The appeal justices' view was that types of land were not defined in the CA 2006, and so long as the registration criteria had been met there was no reason to exclude West Beach from being registered.

The Port's other arguments against registration included that there was no continuous use of the land due to the tide cycles; that the area of registration would be indefinite because of the changing boundary of the mean low water mark; and that there was no certain public right of way for access to the land. The Court of Appeal justices dismissed all these propositions.

The final two grounds of the Port's appeal were that byelaws from 1931 in relation to the harbour authority applied to West Beach and prohibited obstruction of use of the harbour by sports, games or by dog walkers. As the byelaws were not publicised and were not enforced in the relevant twenty years, again these were insufficient grounds to oppose registration. Secondly, on a review of the case law, the majority in the Court of Appeal held that generally the public use of the foreshore is a matter of tolerance by landowners and not by permission or licence. Use "as of right" is a pre-requisite to registration of a town or village green. It was held that history of use by the public through tolerance will be sufficient to establish use by right, and adequate for the purposes of registration.

On these two final grounds, Lord Justice Lewison dissented from the two other justices and held that the public had no general right to use the foreshore, and generally the public use was by implied permission rather than through tolerance. Therefore, use of West Beach was not "as of right" and registration should not be permitted under the CA 2006.

Conclusion

The judgment reviews many established areas and principles of common law and applies those to the relatively new common registration rules. As it is anticipated that the Port will apply for leave to appeal this decision and also perhaps appeal on human rights grounds relating to interference with their land ownership, this decision may not yet be settled law and we will update on any further developments.