Beach can be registered as village green

A Sussex beach, which is completely covered by the sea at high tide, can be registered as a village green, the Court of Appeal has ruled.

Lord Justice Richards said that under section 15 of the Commons Act 2006 there was no need for a "definitional link" between the land in question and a traditional village green.

He said that registration depended "simply upon meeting statutory conditions that are expressed without reference to a town or village green".

The court heard that West Beach in Newhaven, created by the building of a breakwater in 1883, is "wholly covered by water at high tide".

The port authority fenced off public access in 2006, claiming that the sea wall was dangerous. East Sussex Council decided to register the beach as a town or village green, after receiving an application from the local town council.

At a public inquiry, a planning inspector agreed with the council that it should be registered, but the port authority launched a judicial review.

Delivering judgment in R (on the application of) Newhaven Port and Properties v East Sussex Council and others [2013] EWCA Civ 276, Richards LJ agreed with the trial judge that registration was not precluded by the fact that the beach had no fixed boundary.

"The judge accepted that the usual seaward boundary of the area actually used for lawful sports and pastimes had varied on a daily or seasonal basis over the twenty years and would likewise vary in future, and indeed with future accretion or diluvion could vary more markedly.

"But he did not accept that this showed that a tidal beach was incapable in law of registration as a town or village green."

Richards LJ said that, for the purposes of the council's application to register the beach, the planning inspector had agreed to accept the "mean low water" point.

The lord justice rejected a further argument that that there was no public right of way to West Beach and that use of land to which the public had no right of access was necessarily "precarious" and not as of right.

"The mere making and publication of the byelaws back in 1931 was not sufficient to meet that requirement," he said.

"On the inspector's findings of fact, there was nothing by way of display or enforcement of the byelaws during the relevant 20 year period to indicate to the public that use of the beach was subject to the permission of the landowner.

"The inspector was therefore right to find that the byelaws did not have the consequence that such use was precarious and not use as of right."

Lord Justice Richards rejected the port authority's appeal. Lord Justice McFarlane agreed, for his own reasons. Lewison LJ dissented, on the grounds that use of the foreshore was by permission of the port authority and was not therefore "use as of right".