18 commercial property
Newhaven beach: harbour property or town and village green
In the 16th century a storm blocked the original mouth of the River Ouse and as a result Newhaven harbour moved three miles to the east. In 1883 the predecessor of Newhaven Ports and Properties (NPP), a harbour company with statutory powers under various acts (referred to here as the Newhaven Acts), constructed a breakwater which eventually led to (by accretion) the creation of a 15-acre beach within the harbour estate known as West Beach. Thereafter and apart from periods during and after the two world wars, local inhabitants used the beach for bathing and general pleasure purposes. This was until 2006, when the harbour company, perhaps with a view to its future development, fenced the beach off. Paris Smith’s James Snaith tells the story so far
land in question has to be used “as of right“ which paradoxically means that the public have to use it in a way which is adverse to the rights of the owner). This, NPP argued, was because (i) the public, as a general principle, has an implied licence to use the foreshore for bathing (ii) the NPP (in an earlier guise) had made byelaws concerning the public’s right to use Newhaven harbour (limiting bathing in some areas) and that, by implication, meant that the public had been given licence to use the beach and (iii) as the harbour and its use and the activities of NPP had been specifically regulated by statute the provisions of Section 15 were incompatible with the Newhaven Acts and general legal principle determined that the 2006 Act should give way to the Newhaven Acts (those being specific and the 2006 Act being general).
The Supreme Court considered the question of whether the public have a common law right to bathe on the foreshore, or whether they have no such right and that that activity occurs simply because it is tolerated (“it would be churlish of owner of foreshore to object“), but in the event
In 2006 the Commons Act of that year provided (Section 15) that where a significant number of local inhabitants use an area of land for sports and pastimes, any person may apply for that land to be registered as a town or village green. Land so registered is afforded protection (it is a criminal offence to damage a green, enclose, fence it off, build on it or drive over it) and as such its potential for development is circumscribed, which is the reason why Section 15 has provided a useful weapon for locals looking to inhibit development and a headache for developers.
In 2008 Newhaven Town Council applied to East Sussex County Council for West Beach to be registered as a town and village green and, after a local inquiry, West Beach became nationally famous when, to many people’s surprise, the registration was confirmed. NPP secured temporary comfort when the High Court granted an application for a judicial review of the decision to register West Beach but this proved to be short lived because the Court of Appeal overturned the High Court decision and re-instated the registration. The matter went before the Supreme Court in November 2014 and the Court’s decision was issued on February 28 this year.
The issues before the Supreme Court
NPP argued that the public had been given an implied right to use the beach by the company (a right which the company could, at any time withdraw) and as such Section 15 did not apply because it requires that the public has to have used the land without any legal right or licence to do so (Section 15 requires that the
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declined to definitively decide that issue, instead acknowledging that there are arguments both ways. However it did decide that the byelaws gave an implied licence for the public to use West Beach (and for these purposes it did not matter that the byelaws had not been publically displayed) and NPP could withdraw that licence. Furthermore, as NPP was required by statute to regulate and manage the harbour and as that was incompatible with rights granted by Section 15, the latter had to give way to the former.
The harbour company won the day to the relief of harbour authorities up and down the country.
Lessons
The case provides useful guidance to those concerned with the use and management of harbours and other areas where the public realm intersects with private rights. It may have relevance to other scenarios where the effect of the 2006 Commons Act has a bearing on development proposals involving land within the control of public authorities, particularly where applicable byelaws have been made or a statutory incompatibility may apply.
James Snaith specialises in marina development and construction law (see a detailed profile on the Paris Smith LLP website).
Details: James Snaith 023-8048-2254
james.snaith@
parissmith.co.uk www.parissmith.co.uk
THE BUSINESS MAGAZINE – SOLENT & SOUTH CENTRAL – APRIL 2015
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