Newhaven Port & Properties Ltd, R (on the application of) v Secretary of State for the Environment Food and Rural Affairs

Registration of land as a town or village green is a control of use, rather than a deprivation of possessions, where title remains with the owner. Under A1P1, legislation pursuing social or economic policy is compatible if it pursues a legitimate aim and maintains a fair balance. The court respects Parliament’s judgment unless the aim or means are manifestly without reasonable foundation.

Section 15(4) of the Commons Act 2006 pursued legitimate aims by regularising long-standing public use, allowing time for applications after less obvious pre-commencement cessations, and clarifying legal uncertainty. Its five-year period ran from cessation, and was not comparable to the two-year period for post-commencement cessation. The provision was not disproportionate merely because a different or more certain scheme could have been adopted.

Newhaven Town Council applied to register land owned by Newhaven Port and Properties Ltd as a town or village green. The registration authority accepted an inspector’s recommendation and registered the land. On judicial review, Ouseley J quashed the registration, although he rejected the argument that section 15(4) of the Commons Act 2006 was incompatible with A1P1.

The Court of Appeal subsequently restored the registration on the domestic “as of right” issue in [2013] EWCA Civ 276. The present appeal concerned the remaining A1P1 challenge. The central issue was whether the transitional five-year application period for qualifying use that ceased before section 15 came into force pursued a legitimate aim by proportionate means.

1. Disposition. The Court of Appeal unanimously dismissed the Port’s appeal on the A1P1 issue. Lewison LJ gave the principal reasons, with which Gloster and Lloyd LJJ agreed.
2. Nature of the interference. Registration of a town or village green significantly restricts the owner’s activities but does not deprive the owner of legal title. The measure therefore constituted control of the use of property under the second paragraph of A1P1, subject to the requirements of legality, legitimate aim and proportionality.
3. Applicable approach. The State bore the burden of justifying the interference. The legislative aim and proportionality of the measure were nevertheless to be assessed objectively, principally from the legislation and helpful contextual material. In matters of social and economic policy, the court respected Parliament’s judgment unless the aim or means were manifestly without reasonable foundation. Retrospective or retroactive legislation required special justification, but was not prohibited as such. Compensation was not mandatory for control of property, although its availability was relevant. The owner’s ability to avoid the predicament was also relevant.
4. Legitimate aim. Section 15(4) pursued legitimate aims. It regularised a long-standing state of affairs based on at least twenty years’ use as of right. It gave users a longer period of grace where pre-commencement cessation might have resulted from permission rather than obvious physical exclusion. It also addressed substantial uncertainty in the previous law.
5. Proportionality. The five-year period ran from cessation of use as of right, not from commencement of the Act. Section 15(3) was not an analogue for section 15(4), because the provisions addressed different forms of cessation and section 15(4) could apply where use continued permissively. The owner could have prevented the qualifying twenty-year period from arising by granting permission or barring access. Section 15(5) provided significant protection for development supported by planning permission.
6. The absence of a further transitional opportunity, lack of prior consultation, or the possibility of devising a more sophisticated formula did not make section 15(4) disproportionate. The means adopted were not manifestly without reasonable foundation. The appeal was dismissed.

• Court of Appeal (Civil Division). The present court unanimously dismissed the Port’s A1P1 appeal.
• Court of Appeal (Civil Division). In [2013] EWCA Civ 276, the court by majority allowed the Council’s appeal on the domestic “as of right” issue and restored the registration.
• High Court of Justice, Queen’s Bench Division. In [2012] EWHC 647 (Admin), Ouseley J rejected the A1P1 challenge but quashed the registration on the domestic issue.