R v East Sussex County Council and another

Recreational use of land is “by right”, rather than “as of right”, where valid byelaws made under statutory authority implicitly permit that use. The permission may arise from prohibitions which, read contextually, necessarily or obviously permit activities outside their stated limits. Such a public law permission need not have been communicated to users.

The Commons Act 2006 does not permit registration of land as a town or village green where the resulting rights would be incompatible with the statutory purposes for which a statutory undertaker acquired, holds and continues to use the land. Mere public ownership or the existence of possible future development powers is insufficient. The conflict must arise from the land’s specific and continuing statutory purposes.

Newhaven Port and Properties Limited owned and operated West Beach as operational land within Newhaven Harbour. Local inhabitants had used the Beach for recreation for many years. Newhaven Town Council applied to register it as a town or village green under section 15 of the Commons Act 2006, and East Sussex County Council resolved to register it.

On judicial review, the High Court allowed the port company’s claim because registration would conflict with its statutory harbour functions: [2012] EWHC 647 (Admin). The Court of Appeal reversed that decision by a majority: [2013] EWCA Civ 276. Lewison LJ dissented on the basis that the public’s use had been permitted.

The Supreme Court considered whether recreational use was permitted by a general rule concerning the foreshore or by the harbour byelaws, and whether registration was precluded by incompatibility with the statutory harbour regime.

1. Appeal allowed unanimously. Lord Neuberger and Lord Hodge delivered the principal judgment, with which Lady Hale and Lord Sumption agreed. Lord Carnwath agreed that the appeal should be allowed because the harbour byelaws made the public’s use permissive.

2. The Court did not determine whether the public has a general common law right, a presumed licence, or no right to use the foreshore for bathing and associated recreation. That question was important, difficult and unnecessary to the result. The principal judgment therefore assumed that, apart from the byelaws and statutory incompatibility, the public’s use had been “as of right”. Lord Carnwath considered that traditional recreational use of beaches would naturally support an inference of implied permission, although the particular Beach was artificially created and formally regulated.

3. A valid byelaw may permit conduct which would otherwise be unlawful. Permission may be implied where it is necessary or obvious on the byelaw’s contextual construction. Byelaws 68 and 70 impliedly permitted bathing and harmless recreation outside the prohibited area and subject to the operational restrictions. Byelaws 51, 52 and 71 reinforced that construction.

4. The byelaws remained effective despite the absence of continuing public display. Confirmation made them operative as local laws. Non-display might prevent a prosecution of an uninformed offender, but it did not nullify the byelaws or their permissive effect.

5. The statutory permission did not have to be communicated to individual users. As in R (Barkas) v North Yorkshire County Council [2014] UKSC 31, the right was a public law right derived from statute. Recreational use pursuant to that right was “by right”, not “as of right”. The statutory condition in section 15 of the Commons Act 2006 was therefore unsatisfied.

6. The majority also held that section 15 does not apply where registration would be incompatible with the defined statutory purposes for which a statutory undertaker acquired, holds and continues to use land. Registration would impede the operation, maintenance, dredging and alteration of the working harbour and would expose interference with recreational enjoyment to criminal sanctions. Mere ownership by a public body, or possession of general powers which might later be used for development, would not suffice.

7. The order of the Court of Appeal dated 27 March 2013 was set aside.

1. United Kingdom Supreme Court: Allowed the port company’s appeal unanimously and set aside the Court of Appeal’s order: [2015] UKSC 7.

2. Court of Appeal: By a majority, allowed the councils’ appeal and reversed the High Court’s decision. Lewison LJ would have dismissed the appeal because the public’s use was permitted: [2013] EWCA Civ 276.

3. High Court, Administrative Court: Allowed the port company’s judicial review claim because foreseeable conflict with its statutory harbour functions precluded registration: [2012] EWHC 647 (Admin).