Newhaven Port and Properties Ltd v East Sussex County Council & Ors

Land covered by water, including a tidal beach, may be registered as a town or village green if the statutory requirements concerning lawful sports and pastimes are satisfied. The land need not be grassy, traditional, continuously usable, or used for recreation as its dominant purpose. A fixed line on the application map can provide sufficient certainty despite tidal movement.

Uncommunicated byelaws may render particular activities unlawful, but their existence alone does not make otherwise lawful recreational use permissive. However, land held for statutory port purposes cannot be registered where recreational rights would foreseeably conflict with the port authority’s statutory functions. Registration was therefore unlawful.

Newhaven Port and Properties Ltd challenged East Sussex County Council’s decision to register West Beach, a tidal beach forming part of Newhaven Harbour, as a town or village green under the Commons Act 2006.

The claimant argued that a tidal beach was incapable of registration, that the boundary was uncertain, that tidal conditions and harbour byelaws prevented qualifying use, and that public access to the beach was unavailable. It also argued that registration was incompatible with the claimant’s statutory functions as port authority and that section 15(4) of the 2006 Act was incompatible with Article 1 of Protocol 1 to the European Convention on Human Rights.

1. Registration of tidal land. The claim succeeded and the County Council’s decision was quashed. The statutory definition did not require a town or village green to be grassy or traditional. Land covered by water could include land periodically covered by the sea. A fixed boundary shown on the application map, based on mean low water, supplied sufficient certainty despite tidal variation.
2. Use and tides. Registration did not require recreational use to be possible over every part of the land at all times, nor did qualifying use need to be the sole or dominant use. Whether the recreational use was sufficient was a matter of fact and degree. The Inspector was entitled to find that the exposed beach was used with sufficient regularity to indicate the assertion of rights.
3. Byelaws and use as of right. Byelaws could make particular activities unlawful, requiring them to be excluded from the statutory assessment. But the mere existence of an uncommunicated byelaw-making power or byelaws did not create an implied licence. Following R (Beresford) v Sunderland City Council, [2003] UKHL 60, and R (Lewis) v Redcar and Cleveland Borough Council (No 2), [2010] UKSC 11, permission required an overt act communicated to users.
4. Statutory port functions. The decisive issue was the conflict between registration and the claimant’s statutory port functions. Applying British Transport Commission v Westmorland County Council, [1958] AC 126, registration could not be permitted where it was reasonably foreseeable that the recreational rights would conflict with the operation and development of the port. The evidence showed likely future conflict, including harbour works and changes in vessel operations. The claimant therefore lacked capacity to permit the recreational use as of right.
5. The objections based on access, the foreshore, and Article 1 of Protocol 1 failed. Section 15(4) pursued a legitimate transitional aim and was proportionate. The claim was nevertheless allowed because West Beach could not lawfully be registered in view of the foreseeable conflict with the port’s statutory purposes.

First instance judicial review. No appellate history is stated in the judgment.