R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council & Anor [2015] UKSC 7

Newhaven Port challenged East Sussex County Council's decision to register West Beach as a village green under the Commons Act 2006. The Supreme Court allowed the appeal, holding harbour byelaws gave implied permission for recreational use, and registration was statutorily incompatible with operating a working harbour.

Facts

West Beach at Newhaven is a beach of approximately 6 hectares which formed by accretion against a breakwater constructed in 1883 as part of Newhaven Harbour. The Harbour and Beach are owned and operated by Newhaven Port and Properties Ltd (‘NPP’) as a working harbour pursuant to a series of statutes dating back to 1847, including the Newhaven Harbour and Ouse Lower Navigation Act 1847, the Harbours, Docks and Piers Clauses Act 1847, the Newhaven Harbour Improvement Act 1878, and the Sealink (Transfer of Newhaven Harbour) Harbour Revision Order 1991.

Members of the public had used the Beach for bathing, sunbathing, picnicking and similar recreation for over 80 years (save during the World Wars) until NPP fenced it off in April 2006. In 1931, byelaws had been made under the 1847 Clauses Act regulating activities in the Harbour, including restrictions on bathing in certain areas (Byelaw 68), sports and games (Byelaw 70), and bringing dogs (Byelaw 71). The Inspector found the byelaws had not been displayed or actively enforced during the relevant period.

In December 2008, Newhaven Town Council applied under section 15(4) of the Commons Act 2006 to register the Beach as a town or village green. The County Council resolved to accept the application. NPP sought judicial review. Ouseley J granted the application on grounds of statutory incompatibility. The Court of Appeal (Lewison LJ dissenting) allowed the appeal by the councils.

Issues

Three issues arose: (i) whether public use of the foreshore for bathing is pursuant to an implied licence from the owner, so that use was not ‘as of right’; (ii) whether the Byelaws gave rise to an implied licence permitting recreational use of the Beach; and (iii) whether section 15 of the 2006 Act could operate where registration would be incompatible with statutory functions for which the land was held.

Arguments

NPP argued there was a rebuttable presumption that public use of the foreshore was by permission of the Crown or its successor; that the Byelaws impliedly permitted recreational activities elsewhere in the Harbour by prohibiting them in specified areas; and that registration was incompatible with the statutory harbour purposes. The County Council and Town Council argued each ground should be rejected, contending that any licence had to be communicated to users, and that mere statutory ownership for public purposes was insufficient to oust section 15.

Judgment

Issue 1: Public rights over the foreshore

The Supreme Court declined to decide whether members of the public have a common law right or implied licence to use the foreshore for bathing, identifying three possibilities arising from Blundell v Catterall (1821) and subsequent authorities, noting the issue was of wide-ranging importance and unnecessary to determine. The court proceeded on the assumption that, absent the Byelaws and statutory incompatibility, the use would have been ‘as of right’.

Issue 2: The Byelaws

The Court held that byelaws can in principle grant a licence, including by implication. Byelaws 68 and 70 (prohibiting bathing in a specified area and prohibiting sports impeding harbour use), read against Byelaws 51, 52 and 71, would lead a reasonable reader to conclude that bathing and recreation were impliedly permitted on the Beach. The failure to display the Byelaws as required by section 88 of the 1847 Clauses Act did not invalidate them. Applying R (Barkas) v North Yorkshire County Council [2014] UKSC 31, the Court held that where there is a public law right derived from statute permitting recreational use, communication to users is unnecessary; the use is ‘by right’ not ‘as of right’. The reasoning of Richards and McFarlane LJJ, which relied on disapproved aspects of Beresford, could not stand.

Issue 3: Statutory incompatibility

The Court held that section 15 of the 2006 Act does not apply to land acquired by a statutory undertaker and held for statutory purposes inconsistent with registration as a village green. Drawing on English authorities on dedication and prescription (British Transport Commission v Westmorland County Council [1958] AC 126) and Scottish authorities (Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620; Ellice’s Trustees v Commissioners of the Caledonian Canal 1904 6 F 325), the Court invoked the principle generalia specialibus non derogant. Registration would criminalise interference with the green under the Inclosure Act 1857 and Commons Act 1876, impeding mooring, dredging, alteration of the breakwater and other statutory functions. NPP’s statutory duties to maintain and operate the working Harbour were clearly incompatible with registration.

Lord Carnwath agreed on ground (ii) but expressed reservations on ground (iii), while providing extensive obiter analysis of the historical, comparative and jurisprudential context of public rights over the foreshore.

Implications

The decision establishes two significant principles. First, statutory byelaws made by a landowner-undertaker can confer an implied licence on the public to use land for recreational activities, with the consequence that such use is ‘by right’ under the public law right derived from statute, defeating any village green claim, even without communication of the licence to users. This extends the principle in Barkas beyond local authority recreation grounds to harbour byelaws.

Second, and more broadly, the doctrine of statutory incompatibility now operates as an implied restriction on the scope of section 15 of the Commons Act 2006. Where land is held by a statutory undertaker for specific statutory purposes that conflict with the consequences of village green registration, the 2006 Act does not enable registration. The Court distinguished cases such as New Windsor Corporation v Mellor, the Oxfordshire case and Lewis v Redcar, where land was held by public bodies but not for specific statutory purposes incompatible with registration. Mere local authority ownership with general statutory powers is insufficient; there must be a defined statutory purpose with which registration would conflict.

The decision is significant for statutory undertakers (ports, railways, utilities) holding operational land, providing protection against village green registration. It is correspondingly restrictive of community efforts to protect long-used recreational land where it forms part of a working statutory undertaking. The Court expressly left open the difficult question of public rights over the foreshore generally, signalling that Blundell v Catterall may be open to reconsideration in a future case where the issue is necessary for decision.

Verdict: Appeal allowed. The Supreme Court set aside the order of the Court of Appeal, holding that the use of the Beach was by implied permission under the Byelaws and that, in any event, registration as a town or village green was barred by statutory incompatibility with NPP’s harbour functions.

Source: R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council & Anor [2015] UKSC 7