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This article was first published on Lexis®PSL Property on 2 March 2015 and the full article can be found online here.
Property analysis: The Supreme Court has upheld an appeal from the owners of a beach in East Sussex against a previous ruling that the land could be registered as a village green. Gareth Pinwell, a partner in the planning team at Ashfords, looks at the background of the court's decision and considers its impact on the future registration of town or village greens.
R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council  UKSC 7,  All ER (D) 278 (Feb)
The Supreme Court held that the use of a beach by members of the public up to 2006 had not been 'as of right' but by implied licence by virtue of the fact that members of the public had enjoyed an implied licence to use the coastal beaches in the UK for recreational and associated purposes and by virtue of the provision of the byelaws governing the area. The result of that finding was that that part of the beach could not be registered as a village green pursuant to the Commons Act 2006, s 15 (CoA 2006).
What is the background to the case?
The case concerned the decision of East Sussex County Council to register West Beach within Newhaven Harbour as a town or village green, following an application from Newhaven Town Council. The County Council reached the view on the evidence that inhabitants of the locality had used the beach 'as of right' for a period of at least 20 years leading up to the application in 2006.
The decision to register was challenged initially by the harbour authority by judicial review. It subsequently found its way before the Supreme Court following a series of judgments.
The appeal to the Supreme Court was made by the harbour authority on three grounds:
• that the right of the public to use the beach was based on an implied licence to use the foreshore and therefore they could not have used the beach 'as of right' for the required 20-year period to warrant registration
• that the public had an implied licence to use the beach pursuant to harbour byelaws and therefore they could not have used the beach 'as of right' for the required 20-year period to warrant registration
• that the registration of the beach as a town or village green was incompatible with the statutory functions and use of the harbour by the harbour authority.
Why did the court decide to allow the appeal?
On the first ground, the court reached a view supporting the decision of the Court of Appeal that the users used the beach as of right, and that there was no implied licence.
However, on the second ground it reached a view that the harbour byelaws made by the harbour authority--which covered the beach and its use--operated so as to grant the users a licence to use the beach. Therefore their use was as a consequence of these rights and therefore they had an express permission to
use the land. This defeated the claim of the town council that inhabitants of the locality had used the beach for 20 years without any express licence or consent. This was the ground upon which the appeal was allowed.
Having found in favour of the harbour authority on the second ground, there was no strict need to consider the third ground. However, as it had been fully argued, the court still provided its judgment.
It reached a conclusion that the provisions of CoA 2006 could not operate so as to interfere with the rights granted to the harbour authority to operate the harbour as a working harbour under statues and orders.
To give a practical example, the harbour authority were authorised to carry out dredging in the harbour including the beach. If the beach was also registered as a town or village green, then those dredging activities would have amounted to a criminal offence under town and village green legislation.
The court reached the view that registration of the beach as a town or village green would operate in a way to prevent the harbour authority from carrying out its statutory functions under its enabling acts and orders.
What are the implications for landowners and developers concerned with potential town of village green land?
The circumstances of the case are unusual and quite particular to the circumstances of the case, ie involving a harbour authority and their byelaws and statutory powers.
In terms of the decision, it follows the decision in the case of R (on the application of Barkas) v North Yorkshire County Council and another  UKSC 31,  3 All ER 178. Barkas involved a local authority which provided a recreation ground under its statutory powers--the claim for a town or village green was defeated as the inhabitants had used the recreation ground by right and with the licence and permission of the local authority.
If landowners and developers have sites where there is a pending town or village green application on local authority land, the judgment follows the Barkas case.
The ability to make applications to register town and village greens has been significantly curtailed by the insertion of sections 15 (a)-(c) into CoA 2006 which came into force on the 25 April 2013. The effect of the amendments were as follows:
• introducing landowner statements whereby a statement can be deposited with the registration authority to prevent a 20-year period of 'as of right' use accruing
• introducing the concept of 'trigger events', so that if a trigger event has occurred this operates to prevent any town or village green applications being lodged until there is a 'terminating event'.
Trigger events are defined in the legislation and examples of these events are as follows:
• the first publication of an application for planning permission for the land, which will include circumstances where planning permission is subsequently granted
• the publication by the local planning authority of a draft local plan or neighbourhood plan proposal which identifies the land for potential development
• the adoption or making by the local planning authority of a local plan or neighbourhood plan which identifies the land for potential development.
Terminating events are defined in the legislation and in respect of a planning application are as follows:
• withdrawal of the planning application
• a decision to decline to determine the planning application is made under the Town and Country Planning Act 1990, s 70A
• where permission is refused, and all means of challenging the refusal are exhausted and the decision to refuse planning permission is upheld
• where the planning application is granted, the period within which the development to which that permission relates expires without the development having been begun.
The effect of a terminating event is that the bar to making an application for a town or village green is removed until another trigger event occurs.
What does all this mean for practitioners?
The effect of the recent changes introduced in CoA 2006 have limited the opportunity for the registration of applications for new town and village greens once a trigger event has occurred. If a development is contemplated, consideration of the status of the development in the development plan for the area will be crucial.
If the site is allocated in a local plan then a trigger event will be in place to prevent an application. There will be a need to promote sites so that they are also in draft development plans that may secure a trigger event.
The remaining areas for consideration will be those applications that are currently in the system and those areas of land where there is no trigger event in place and an application could be contemplated. The focus of the practitioner where no trigger event is in place may now be to seek to create such a trigger to safeguard the status of the site.
Alternatively, if there is a current application to be determined it will have to be resisted using the existing case law.