The Queen (on the application of Newhaven Port and Properties Limited (Respondent)) v East Sussex County Council (Appellant) and Newhaven Town Council (Interested Party)  EWCA Civ 276 - read judgment
This is a tale of common law rights, open water swimming, and individual freedoms. It is about the flip side of codified human rights: the time-honoured principle, that that which is not specifically prohibited, is – or should be – permitted in English law.
Our current preoccupation with certain sorts of intolerance must not allow us to lose sight of another threat to our individual freedoms: the encroaching requirement that our use of wild spaces is subject to the permission of the public authority who happens to be vested with certain statutory power over the land in question. This ruling confirms, if it needed confirming, that “toleration” does not mean the same as “permission”. If we allow the one to collapse into the other, the inference will become widespread that use of such land is permissive by virtue of an implied licence, a licence which can be easily withdrawn at any time.
This issue arose in a different guise in the prolonged battle over the “right” to mooring in Moore v British Waterways Board - see my posts here and here. But there is a much more fundamental freedom at the heart of this case: our right to use our own coastline for individual, recreational purposes.
West Beach, Newhaven, where the River Ouse meets the sea, has been used by local inhabitants as of right for lawful sports and pastimes for decades. As far as the law is concerned, the presciptive period of at least twenty years was fulfilled by April 2006. That was when the owner of West Beach, Newhaven Port and Properties Ltd, the respondent in this appeal, fenced off public access to West Beach for future development purposes. It also claimed that the sea wall was in a condition which would make public access to its beach dangerous.
The arguments centred on the registration of the beach by the appellant county council as a town or village green. Odd though it sounds, it was a critical step in preserving the public access to this tidal bay. One might think, as the Port contended, that a town or village green must be an area mainly of grass, in or on the edge of a town or village – what Lewison LJ refers to as “the Platonic ideal” of a village green. No doubt that was what a town or village green was in popular parlance, the town or village playground. But the nature of town and country planning does not allow of such exclusive definition. If it did, greens and playgrounds would be the only truly “free” space left in the land. By 1965, when the Commons Registration Act was passed, a much broader definition of “town or village green” was considered necessary. It included land
“(a) which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or (b) on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or (c) on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years.”
The same subsection provided that “‘land’ includes land covered with water”. These provisions have been replaced in their entirety by s.15 of the Commons Act 2006, which essentially says the same thing.
The Port challenged the registration, claiming, inter alia, that, on the proper construction of the Commons Act 2006, a tidal beach could not be registered as a town or village green, particularly an area with no fixed boundary; that byelaws made by the Port meant that the public’s use of the beach was by licence and not “as of right” as required by s.15(4)(a) and that the public’s use of the beach could not be as of right if there was no public access to it.
It also advanced the claim – a fairly audacious move, given that quasi-public authorities such as the Port are not normally regarded as victims of human rights violations – that 15(4) of the Commons Act 2006 was incompatible with article 1 of protocol 1 to the European Convention on Human Rights, as an interference with the landowner’s property rights, in creating an unjustified retrospective power to register land on the basis of recreational use that ceased in 2006. It is a pity that this point was adjourned to a separate hearing, as it would no doubt have engendered an interesting discussion – see David Hart’s post on Uninterrupted Morris Dancing for more on this theme.
The judge below found in favour of the respondent on the basis that registration was incompatible with Newport’s exercise of its statutory functions, and this finding was challenged by the County Council . The judge’s rejection of all Newhaven Port’s other grounds of challenge was appealed, in turn, by the respondent.
The Court of Appeal allowed the Councils’ appeal.
Reasoning behind the judgment
The point on which the Port won in the court below was that registration as a town or village green would interfere with the operation and development of the port. The registration of the area as a village green could prevent it exercising those powers, were that to interfere with the exercise of the recreational rights. The basis on which the judge below upheld this argument was this:
One group of the public cannot acquire rights against the general public interest measured by the existence of statutory powers which are reasonably foreseeably inconsistent with the rights they assert.
This somewhat dense statement needs unpacking. Those members of the public who used the beach for swimming could not assert these rights against the public interest in the foreseeable commercial development of the harbour , a future exercise of the statutory powers of the harbour owner.
But as Richards LJ points out, this is “seriously flawed” reasoning. There is no question of capacity of the grant of rights in this context. As we have seen, registration under the Commons Act depends on use of a specified character over a specified period “as of right”. It does not depend on a grant of rights, a dedication, or the giving of consent to the use:
for use to be as of right, it must be “nec precario” (without the licence of the landowner). Since absence of permission is an essential condition of the use on which registration as a town or village green is based, the fact that the landowner lacks capacity or power to give permission cannot operate to defeat such registration. [para 14]
The judge below was concerned about the acquisition of rights “against the general public interest” but the existence of a public interest against the registration of land as a town or village green was “plainly not a sufficient reason for holding it not to be registrable”:
Parliament has struck a public interest balance in laying down the conditions for registration. It has chosen not to make an exception in relation to land held by those with public functions that may be affected by registration. [para 28]
Ouseley J had been right on all the other points, contested here by the Port, to the effect that there was no reason why a tidal beach could be registered as a town or village green under the 2006 Act, nor did the fact that the beach had no fixed boundary did not prevent registration.
Neither the absence of any common law right to use of the beach for recreational purposes nor the history of tolerance of such use precluded a finding that such use was “as of right”. The authorities did not support the proposition that recreational use was presumed to be by permission of the Crown. Although they established that there was no general common law right to use the beach for recreation, they did not show that such use could never be “as of right”.
An early authority on what we might call the “right to swim” was the 1821 case of Blundell v Catterall 5 B & Ald 268 which concerned the question
whether there is a common-law right for all the King’s subjects to bathe in the sea, and to pass over the sea-shore for that purpose, on foot and with horses and carriages.
Even in those days of public propriety and caution in the face of a dangerous ocean, it was considered not incumbent on the Crown or any other landowner to ban the widespread practice of bathing in the sea and passing over the sea-shore for the purpose. The Court in Blundell rejected the argument that the activity was subject of a common law right – in the evidence of that particular case – but what the judgments did clarify, crucially, was that such rights could be acquired by usage and custom, and they did not require the existence of any general permission by the Crown to engage in the practice. The practice was explained by Holroyd J on the basis that where the soil remains in the Crown and no mischief of injury is likely to arise,
it is not to be supposed that an unnecessary and injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriae.
To be sure, such activities, enjoyed “of right”, which are not expressly “common law rights” (such as the rights of navigation, fishing, estover etc) are fragile. They require vigilant protection against the march of enclosure, especially that conducted in the name of our “safety”.
Anyone who has endured a Manhattan summer will appreciate the efficiency of authorities who want to protect us from ourselves by effectively banning any open water swimming on an island surrounded by the ocean and a huge river. It is comforting to known that, for the moment at least, Parliament and the courts are in accord in not allowing the same mission creep of public safety to restrict our freedom to enjoy British coastal waters. We don’t have a specific right to swim or to walk on public beaches, exactly, but the Crown’s tolerance of this practice for time immemorial would have to be reversed by legislative fiat far more explicit than the broad grant of powers that the Port enjoyed in this case. So draconian would such a measure have to be, in fact, that (hopefully) it would never make it through Parliament.
We shall never surrender.
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