Newhaven Port & Properties Limited v East Sussex County Council [2012] EWHC 647 (Admin)

Permission to appeal to the Court of Appeal has been granted in the case of Newhaven Port and Properties Limited v East Sussex County Council [2012] EWHC 647 (Admin).

The High Court was asked to consider whether the County Council had acted unlawfully in resolving to register as a village green an area of tidal beach which, because of bylaws, was only able to be used for lawful sports and pastimes around 42% of the time. In doing so, the High Court had to tackle a number of new or unresolved points of town and village green law.

Ouseley J rejected all but one of the Claimant’s grounds of challenge holding that:

1. There is no additional requirement over and above the express statutory criteria for “greenness” or some other quality of a “traditional” village green before land can be registered as a statutory village green (following the obiter comments of Lord Hoffmann in Oxford County Council v Oxford City Council and Robinson [2006] 2 AC 274),
2. The fact that the tidal boundary of the beach was subject to variation was no impediment to registration,
3. The Inspector advising the County Council had reached a clear, carefully reasoned and rational conclusion that the land constituted a town or village green,
4. The existence of bylaws, the existence of which had not been communicated to the public, did not prevent a finding that user had been as of right,
5. The fact that the foreshore had belonged to the Crown did not mean that a special rule had to be applied or user deemed permissive,
6. The fact that a right of access to the land had not been proven did not mean that user of the land could not be as of right,
7. Section 15(4) of the Commons Act 2006 was not incompatible with Article 1 of the First Protocol of the ECHR.

Nevertheless, it was held that use of the land as a town or village green was incompatible with the statutory status of the land as operational port land and that, for this reason only, registration would not be lawful. However, permission to appeal was granted on the basis that the Defendant’s case to the contrary was realistically arguable and the issue was one of importance. He also granted permission to appeal to the Claimant in relation to question of compatibility.

Stephen Sauvain QC and John Hunter acted for the Defendant County Council.