Battle over registration of beach as village green reaches Supreme Court

The Supreme Court will next week (3 November) hear a dispute over whether a beach in Sussex should be registered as a town or village green.

The case of R (on the application of Newhaven Port & Properties Limited) v East Sussex Council and another relates to West Beach, an area of sand within the port of Newhaven.

In December 2008 East Sussex CC received an application from Newhaven Town Council to register the beach as a town or village green under s.15 of the Commons Act 2006.

Newhaven Port & Properties objected, and following an inquiry the council resolved to register the site. The company then applied for judicial review of East Sussex’s decision.

A High Court judge, Mr Justice Ouseley, dismissed all of the claimant’s original grounds, but reversed the decision on a single point of law.

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 Commons Act 2006.

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

A five-judge panel – comprising Lord Neuberger, Lady Hale, Lord Wilson, Lord Sumption and Lord Carnwath – will hear the case at the Supreme Court over two days on 3-4 November.

According to Kings Chambers, the Supreme Court 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 the first and third issues were “of wide importance", given the extent of land held pursuant to statutory functions and subject to byelaws.