Supreme Court to rule next week on registration of beach as village green

The Supreme Court will next week hand down the latest key judgment on town and village greens, when it rules on an application to register a beach in Sussex.

The case of R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and another UKSC 2013/0102 concerns whether West Beach in Newhaven should be registered as a town or village green under s.15 of the Commons Act 2006.

Newhaven Port and Properties (NPP), the appellant, owns an area of sand within the port.

On 18 December 2008 East Sussex County Council received an application from Newhaven Town Council (the second respondent) to register West Beach as a town or village green.

The appellant NPP objected, and following an inquiry the council resolved to register the site. NPP then applied for judicial review of East Sussex's decision.

In the High Court Mr Justice Ouseley rejected all but one of the arguments against registration advanced by the company.

The judge held that registration of the beach, which was part of the port’s operational land, was subject to the authority’s byelaw-making powers and existing byelaws. As such its registration was incompatible with the statutory powers and the beach was outside the scope of the 2006 Act.

East Sussex and the town council appealed successfully against Mr Justice Ouseley’s ruling.

By a 2-1 majority, the Court of Appeal held that the capacity of the landowner to grant rights over land claimed as a green was irrelevant to its registration. The Court also rejected the port authority’s cross-appeal.

The Supreme Court was reported to have granted permission to appeal on three issues:

• Whether incompatibility with statutory functions is a bar to registration;
• Whether the use of a tidal beach is presumed to be pursuant to a revocable licence;
• Whether the existence of byelaws prevents use being as of right.

Stephen Sauvain QC and John Hunter from Kings Chambers, who are acting for East Sussex, said at the time permission was granted that the first and third issues were “of wide importance", given the extent of land held pursuant to statutory functions and subject to byelaws.

The case was heard in the Supreme Court by a five-justice panel on 3-4 November 2014. The court will hand down its judgment on 25 February.