Newhaven Port and Properties Ltd, R (on the application of) v East Sussex County Council & Anor

Registration under the Commons Act 2006 depends on the statutory conditions, not on whether the owner could grant or dedicate recreational rights. No additional exception arises merely because registration may conflict with public functions. A tidal foreshore is not excluded by its character, variable availability or lack of a fixed natural boundary. Use may qualify where, viewed as a whole, it regularly indicates assertion of rights. Absence of public access may be relevant but is not decisive. Byelaws which imply revocable permission do not confer a statutory right. Unless permission is overtly communicated during the qualifying period, recreational use remains capable of being use as of right. Mere toleration, or the absence of a general common-law right to use the foreshore, does not itself establish permission.

Newhaven Town Council applied under section 15 of the Commons Act 2006 to register West Beach, a tidal beach, as a town or village green. East Sussex County Council, the registration authority, accepted the application after a public local inquiry. Newhaven Port and Properties Ltd, the owner and port operator, challenged the decision.

Ouseley J upheld most of the objections but quashed the decision on the ground that registration was incompatible with the port’s statutory powers and duties: [2012] EWHC 647 (Admin). The County Council and Newhaven Town Council appealed. Newhaven Port relied by respondent’s notice on the remaining objections, including the tidal character of the land, foreshore use, the effect of byelaws and the lack of a public right of access.

1. Appeal allowed by Richards LJ and McFarlane LJ. The High Court’s finding that registration was incompatible with Newhaven Port’s statutory functions was unsustainable. Registration does not depend on an actual or presumed grant, dedication or the landowner’s capacity to grant rights. The reasoning in British Transport Commission v Westmorland County Council [1958] AC 126 concerned dedication of a public footpath and did not apply to registration under the Commons Act 2006.
2. The statutory conditions in section 15 of the Commons Act 2006 are exhaustive. The court could not add a requirement that land resemble a traditional grassy village green. The majority reasoning in Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674, although obiter, was reinforced by Parliament’s decision not to amend the legislation.
3. A tidal beach is not legally incapable of registration. Variable tidal coverage and a boundary fixed by reference to mean low water did not prevent the land being identified or the qualifying use being established.
4. The inspector was entitled to find that regular land-based recreation, including sunbathing, beach games, picnicking, dog walking and kite flying, indicated assertion of rights over the beach as a whole. Use need not be possible over every part at every time. The effect of the tides did not make the decision irrational or disclose an error of law.
5. The foreshore is not subject to a general presumption that recreational use is by permission of the Crown. The authorities established no general common-law right to bathe or undertake recreation on the foreshore, but absence of such a right did not prevent use being as of right. Toleration may coexist with use as of right, as explained in Mills v Silver [1991] Ch 271 and R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335.
6. The 1931 byelaws remained valid and binding despite the later absence of display. Byelaws 70 and 71 impliedly permitted some recreational activities, but did not confer a statutory right of access. Under R (Beresford) v Sunderland City Council [2003] UKHL 60, revocable permission required an overt act communicating it during the relevant period. The absence of signs, enforcement or other communication meant that the byelaws did not make use precarious.
7. The existence or absence of a public right of access could be relevant but was not determinative. The registration authority was entitled to decide the application without determining the separate highway issue or deferring registration. Lewison LJ dissented, considering the foreshore context and the published byelaws sufficient to establish implied permission. His view did not command the court.

1. Court of Appeal (Civil Division) Allowed the appeals by East Sussex County Council and Newhaven Town Council. Richards LJ and McFarlane LJ formed the majority; Lewison LJ dissented. [2013] EWCA Civ 276
2. Administrative Court Ouseley J quashed the registration decision because registration was incompatible with Newhaven Port’s statutory powers and duties. [2012] EWHC 647 (Admin)