I Do Like To Be Beside The Seaside - Court Of Appeal Overturns A Ruling And Allows Common Land Registration At The Foreshore

On 27 March 2013 in the case of R (Newhaven Port and Properties Ltd) v East Sussex County Council and another [2013] EWCA Civ 276 the Court of Appeal overturned a decision of the High Court and held that a tidal beach was capable of being registered as a town or village green under the Commons Act 2006. The port authority who owned the foreshore argued that registration under the Act was not permissible, and would have conflicted with its statutory powers and duties. A majority in the Court of Appeal disagreed.

Common land

The Commons Act 2006 ("CA 2006") is being introduced in stages and is intended to replace all of the provisions of the Commons Registration Act 1965. Section 15(4) of the CA 2006 provides that anyone can apply to register land as a town or village green where "a significant number of inhabitants of any locality... indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; they ceased to do so before the commencement of this section; and the application is made within the period of five years beginning with the cessation..." The section came in to force on 6 April 2007.

Life is a beach

As part of the port development at Newhaven in East Sussex, a breakwater was constructed in 1883 and caused a bank of sand to establish on the coast. This area is known as West Beach and as a tidal foreshore it is covered by sea water 42% of the day - only being fully uncovered for a matter of minutes. The application to register the land as a town or village green was made by East Sussex County Council with supporting evidence of use from Newhaven Town Council. It was opposed by the landowners, Newhaven Port and Properties Limited ("the Port"), and they launched a judicial review.

In the High Court the Port was successful on one of eight grounds for review, namely that the registration of West Beach by the Council as a town or village green was incompatible with and would conflict with the Port's statutory powers and duties. There was no express provision that statutory duties should be considered on registration in the CA 2006, but Mr Justice Ousley held this could be implied. As there was a conflict registration could not go ahead. The County and Town Councils applied to appeal the ruling.

Court of Appeal decision

The Court of Appeal held by a two to one majority that there was no basis for the High Court to imply a qualification in to the CA 2006 that incompatibility with statutory functions and...