R v East Sussex County Council and another

Facts

Newhaven Port and Properties Ltd was the statutory harbour authority for Newhaven and owned West Beach, a tidal beach within the harbour. Local residents applied to register the beach as a town or village green under section 15 of the Commons Act 2006, relying on use for lawful sports and pastimes for more than twenty years. The beach was subject to byelaws made under the harbour legislation, and the harbour authority held the land subject to statutory powers and duties for the running of the harbour. East Sussex County Council, as registration authority, registered the beach.

History

Ouseley J dismissed the harbour authority's claim for judicial review of the registration, and the Court of Appeal dismissed its appeal.

Issue

Whether the public's use of the beach had been as of right, given the byelaws regulating public access; and whether land held by a statutory undertaker for statutory purposes could be registered as a green where registration would be incompatible with those purposes.

Held

Appeal allowed and the registration quashed. The byelaws gave the public an implied permission to use the beach, so their use was by right and not as of right. Independently, registration was precluded because it would be incompatible with the statutory harbour functions for which the land was held.

Ratio

• Where land is held by a public body for statutory purposes and its registration as a town or village green would be incompatible with those purposes, section 15 of the Commons Act 2006 does not apply to it, because Parliament cannot have intended the 2006 Act to override the statutory scheme under which the land is held.
• Use of land by the public pursuant to a permission implied from byelaws regulating that use is use by right, not as of right, and so cannot found registration.

The judgments

Key reasoning

• As of right means use without force, secrecy or permission; a permission need not be express and may be implied from a regulatory regime such as byelaws that authorises and controls public access.
• Registration as a green confers recreational rights on local inhabitants and, through the Victorian statutes protecting greens, restricts what the owner may do with the land, so it can conflict directly with statutory functions.
• Where two statutory regimes conflict in this way, the general provisions of the Commons Act 2006 should not be read as overriding the specific statutory purposes for which the land was acquired and held.
• The harbour authority was under statutory duties and had powers that it might need to exercise over the beach, so registration was incompatible even if those powers were not currently being used.

Where it fits in the module

Listed under Contracts that conflict with other policies, Newhaven illustrates the principle that a public body cannot be bound in ways incompatible with the statutory purposes for which it holds its land or powers. It sits alongside the older incompatibility cases on contracts and covenants fettering statutory powers, such as British Transport Commission v Westmorland CC, and shows the same reasoning used to resolve a clash between two statutory regimes. The case also raises the question how far private claims to land use should yield to public functions.

Criticisms

• Inferring permission from byelaws that merely regulate conduct treats regulation as licence and may defeat registration of much publicly owned recreational land.
• The incompatibility test was left undefined, in particular whether a future or hypothetical use of statutory powers suffices, which produced further litigation.
• Preferring the statutory purposes of the landowner to the Commons Act 2006 involves a judicial choice between two Acts that Parliament did not expressly make.
• The result protects public bodies from the consequences of having allowed long public use, which may seem unfair to communities that relied on it.