Port company wins Supreme Court appeal over registering beach as village green

The Supreme Court has unanimously allowed an appeal by a port operator over a county council's decision to register a beach as a village green.

The case of R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and another [2015] UKSC 7 concerned an application in 2008 by Newhaven Town Council to register West Beach as a town or village green.

This was on the basis that it had been used by a significant number of local inhabitants ‘as of right’ for a period of at least 20 years.

A number of statutes and byelaws were relevant, however:

• The Newhaven Harbour and Ouse Lower Navigation Act 1847, which established harbour trustees with powers to maintain and support the town’s harbour and associated works.
• The Newhaven Harbour Improvement Act 1878, which transferred these powers to the Newhaven Harbour Company. That Act also conferred on the Harbour Company the power to make byelaws in the manner prescribed by the Harbours, Docks and Piers Clauses Act 1847.
• Byelaws made in 1931 regulating access to the harbour and the use of the harbour for (among other things) fishing, playing sports or games and dog walking.
• A statutory instrument in 1991 (“the 1991 Newhaven Order”) which vested the harbour in Newhaven Port and Properties Limited (NPP), the appellant.

West Beach forms part of the operational land of the harbour, and is subject to statutory provisions and to the 1931 byelaws.

NPP is obliged to maintain and support the harbour and it has powers including the dredging of the sea bed and the foreshore.

East Sussex decided to register the beach as a village green under the Commons Act 2006, a decision challenged by NPP in the courts.

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 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.

NPP appealed to the Supreme Court. It argued that either:

1. the public enjoyed an implied licence to use the foreshore and therefore the use was not ‘as of right’;
2. the public enjoyed an implied licence arising from the byelaws and therefore the use was not ‘as of right’; or
3. in any event, the Commons Act 2006 could not be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function.

The Supreme Court unanimously upheld the appeal, on both the second and third grounds (although in a concurring judgment Lord Carnwath said he would have preferred not to reach any decision on the third ground as it was not necessary to do so in order to dispose of the appeal).

See also: Beaches and village greens - the Supreme Court view by George Laurence QC, who appeared for Newhaven Town Council