It seems that cases on the registration of new town and village greens (“TVG’s”) are never far from the news these days. The High Court recently considered the lawfulness of a registration authority’s decision to register land belonging to a port authority in the case of Newhaven Port & Properties Limited v East Sussex County Council & Others  EWHC 647 (Admin). This case concerned a claim by a landowner (Newhaven Port & Properties Limited) challenging East Sussex County Council’s (the registration authority) decision to register land (West Beach) as a new town or village green (“TVG”) pursuant to section 15 of the Commons Act 2006. That section permits the registration of land as a TVG in certain prescribed circumstances where the land has been used by a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, as of right for lawful sports and pastimes on the land for a period of at least 20 years. In this case there had been, as is typical in contested applications, a non-statutory public inquiry, presided over by an Inspector, as a result of which a report had been produced recommending registration. The relevant commons registration authority had resolved to register the land as a TVG in accordance with the Inspector’s recommendations. The landowner challenged that decision on a number of bases.
The issues included whether a tidal beach can be a village green at all given that it had no physical characteristics of a TVG (i.e. it is not ‘green and grassy’). The court was satisfied that such land could be registered on the strength of Lord Hoffmann’s speech in the House of Lords in Oxfordshire County Council -v– Oxford City Council and Robinson  AC 674 (the Trap Grounds Case). The second line of attack concerned the fact that due to the ebb and flow of the tide there was no fixed boundary and that feature of the application land would preclude registration as a TVG. Again, this argument was rejected on the basis that even if the low water mark were to recede through accretion any further land exposed would simply not form part of the registered TVG. Conversely, if the beach were to be eroded the lawful recreational use of what has hitherto been so used will just become impossible (para 49). The third contention against registration was that because the application land was subject to certain byelaws which made some of the activities indulged in unlawful (and therefore not to be treated as qualifying use) and even those activities which were lawful could only be indulged in for some of the time, because the application land was completely covered in water for 42% of the time and partially covered to varying degrees for the rest of the time, such use did not justify registration as a TVG. The court rejected this argument too on the basis that it is not necessary for all of the land to be used all of the time. What is necessary, it was recognised, is that the use relied upon in the application is of a level and nature which, judged objectively, would make a landowner aware that the public is asserting a right (as confirmed by the Supreme Court in R (Lewis) -v- Redcar & Cleveland Borough Council  UKSC 11). The fourth argument by the Claimant was that the fact that the application land was liable to be regulated by byelaws meant that any use would be permissive (precario in orthodox terminology). Reliance was placed on Lord Scott’s dicta in R (Beresford) -v- Sunderland City Council  1 AC 889. However, this argument was also rejected on the basis that the mere existence of the power to make byelaws does not, without more, render user precarious by virtue of any implied licence. The fifth argument, the successful one, I will return to in a moment. The sixth, and final, submission made by the Claimant was that the retrospectivity of section 15(4) of the Commons Act 2006 (the provision under which the application had been made) was incompatible with Article 1 of Protocol 1 of the European Convention of Human Rights. As has been consistently the case when human rights arguments have been aired in the matter of the TVG registration legislation, the court gave the argument short shrift and rejected any suggestion of incompatibility.
The fifth argument dealt with in Ouseley J’s judgment is the one on which the Claimant succeeded. Put very simply, the Claimant said that registration of the application land would not be compatible with its being operational port land. Reliance was placed on the decision of the House of Lords in British Transport Commission -v– Westmoreland County Council  AC 126 in which it was held that a private right of way over land held for a special statutory purpose under a private Act of Parliament could be presumed to have become dedicated as a public right of way as a result of long use. The special status of the land did not of itself prevent dedication so long as dedication was not incompatible with the statutory purpose. Whether or not such an incompatibility exists or can arise will depend, according to the judgment of Ouseley J, upon whether it is reasonably foreseeable that a conflict might come about between the recreational use pursuant to TVG rights and the statutory purpose for which the land is held. On the strength of the evidence here that future alterations or improvements to the port, carried out pursuant to the statutory objects for which the land is held, might well conflict with recreational use it was decided that the land could not, therefore, be registered as a TVG because of the conflicting statutory regimes. The particular point, upon which the Claimant succeeded, adds a new obstacle to the new green registration battleground upon which the war between applicants and landowners is fought. Furthermore, this new line of attack is likely to produce fertile ground, in relevant circumstances, for generating further litigation and introducing even more complexity to the law in this area. Notwithstanding the foregoing observation, however, I have some doubt as to the legitimacy of the basis upon which the claim succeeded in this case. I certainly have some reservations about a refusal to register a new green (where the statutory test has been satisfied) on the strength of what the landowner may or may not want to do in pursuit of its statutory powers at some point in the future but has failed to safeguard throughout the preceding 20 years.
UPDATE: It is understood that permission to appeal has been granted.