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This was the somewhat odd question posed by East Sussex Council and Newhaven Town Council before the Court of Appeal recently. However, we shouldn't be fooled by the seemingly whimsical nature of this challenge. No less than three QCs grappled with the thorny concepts of land without definable boundaries and common law rights, alongside the rather more quaint questions of the effect of the ebb and flow of the tide and whether a village green required to be grassy or otherwise. The case is important not only to the residents of Newhaven, but as a general statement on protection of open spaces for public amenity.
Section 15 of the Commons Act 2006 provides that land can be registered as a town or village green if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years. The residents of Newhaven had used West Beach for at least that period, before it was fenced off in 2006, by the port authority, Newhaven Port and Properties Limited (NPP). In 2008, Newhaven Town Council applied to East Sussex Council (a registration authority for the purposes of the 2006 Act) to have West Beach registered as a town or village green. NPP was the only party to object to the application to have the beach registered. A non-statutory public inquiry found that the beach should be registered, and this recommendation was accepted by the Commons and Village Green Registration Panel.
In the Administrative Court, Ouseley J found in favour of NPP, on the grounds that registration was incompatible with NPP's statutory duty and responsibility over the beach, including the power to make bye-laws. It should be noted that NPP did not argue that registration was incompatible with any current exercise of its statutory duty; rather it was said to be incompatible with any future development of the port. This is because the Commons Act 1899 would, once the beach was registered, give East Sussex the power to devise a scheme for its management, and this would be likely to conflict with the beach's use as part of a port. The judge had characterised this state of affairs as allowing members of the public to acquire rights against what had been judged to be the public interest in having the land developed by NPP. The Court of Appeal, however, found this reasoning to be ‘seriously flawed'. The question at issue was not, as had been considered in the lower court, one of NPP granting rights over its land. Rather, the scheme permitting registration as a town or village green was premised on the community already having rights over the land through use of a specified character over a specified period. There was also no question of NPP being asked to give permission (which, it was argued, they had no power to do), as the claimed use of the land by the community had to be as of right to satisfy the conditions for registration, and therefore could not possible be pursuant to a permission. It was also clear that registration did not depend on grant or dedication of a right over another's land. Nor was it possible to read an implied qualification into the Commons Act 2006 to the effect that registration could not take place where to do so would be incompatible with the statutory functions of another body. Richards LJ noted that where the acquisition of rights did not depend on grant or dedication of these rights, there was no reason why the land owner being unable to grant or dedicate rights should prevent their acquisition by prescription. Although the judge recognised that registration would cause difficulties for NPP, Parliament had made a clear choice not to exclude land owned by public authorities from the registration scheme, as had been confirmed in R (Beresford) v Sunderland City Council  1 AC 889. Further, bye-laws made by the previous port authority which were in force during the 20 year period required to show use as of right, although they had impliedly permitted use of the land, did not confer any right to use the land, and thus could not be said to preclude the pre-condition for registration.
The Court of Appeal also considered the grant of rights in the context of rights over Crown land. NPP argued that use of the foreshore was subject to a rebuttable presumption that such use was by permission of the Crown. In order to answer this question it was necessary to revisit case law dating from as far back 1821, concerning the right to bathe in the sea. These authorities illustrated that use of the foreshore by the public was not as a result of permission granted by the Crown, although nor could it be said that there existed a common law right to pass over this land. However, this did not exclude the possibility that the foreshore could be used as of right, and neither did tolerance of recreational use of the land.
Moving on to those arguments which had failed at First Instance, the Court of Appeal turned to the quaint question of whether a tidal beach could in fact be classified as a green. NPP essentially argued that to be a green, an area of land should be mainly grassy. It pointed to traditional understandings of a village green. The court cited the case of Oxfordshire County Council v Oxford City Council  2 AC 674, in which Lord Hoffman considered whether the statutory definition of a green could be narrowed by the inclusion of some of the qualities of a village green described in Oliver Goldsmith's poem ‘The Deserted Village'. This was described as applying the ‘Auburn test', so-called because of the name of the village described in the poem. Although the House of Lords found that it could not, these comments seem to have been made obiter, and counsel for NPP continued to press for the application of the poetry-based test. However, the Court of Appeal considered itself bound by the Oxfordshire decision, with Richards LJ noting that the decision was handed down whilst the Commons Act 2006 was before Parliament, which had not taken the opportunity to amend the legislative scheme in light of this. Of perhaps greater significance was the fact that the 2006 Act did not require land to meet the more traditional definition of a green in order to be registered; rather, it was enough that the land had been used by the community ‘as of right in lawful sports and pastimes on the land for a period of at least 20 years.'
The next argument put forward by NPP again focused on the nature of the beach; it was argued that the land could not be registered as a green as the movements of the tide meant it had no fixed boundaries. The judge had been correct to reject the argument; the inspector's assessment that the boundary should be drawn at the low water mark was a reasonable one, and the fact that a particularly low tide would uncover land which could be used for the same purposes but was not registered should not preclude registration of the main section of the beach. A separate argument made was that, as part of the beach was often covered by the tide, it could not be registered as the use as of right could not possibly apply to all of it all of the time. The Court of Appeal found that Ouseley J had been right to hold that it was not a precondition of registration that the recreational use be the sole or dominant use of the land. The only condition was that it had been subject to use as of right for the determined period.
Finally, whilst the existence of a right of access could influence the outcome, it was not determinative. The lack of certainty over this question was not a bar to registration. There was clearly strong evidence of use as of right, and NPP's challenge failed.
In short, this case confirms an important distinction between permission, which can amount to the grant of a right, and tolerance, which leaves room for use as of right. It also highlights the fragility of our legal position in relation to many of the open spaces and natural amenities we hold dear, and just how important it is to protect them, not just against the big bad wolf of the corporate world, but equally against public authorities with a different focus.
Finally, pleasant though it may be to explore the pastoral landscape of common law rights over the foreshore, we are never far from the noisy battleground of human rights. NPP's case included a challenge under Article 1 Protocol 1. This was somewhat surprising, given that the registration is intended to protect the traditional usage of the beach for the local community, and Article 1 Protocol 1 is not designed to protect the rights of public authorities. Argument on this issue was adjourned.