The right to be on the beach again – A1P1 and retrospectivity

16 June 2013 by David Hart KC

The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council (Interested Party)  [2013] EWCA Civ 673, 276, 14 June 2013 read judgment 

This case came before the Court of Appeal earlier this year (read judgment of April 2013, and Rosalind English’s earlier post giving the background), when the landowner Port’s attempts to exclude members of the public from West Beach, Newhaven were unsuccessful. They were defeated by the beach being registered as a “village green” – improbable though that description may sound to those not versed in this arcane bit of the law. The lawfulness of this registration in turn depended on it being established that members of the public had used the beach for at least 20 years “as of right” – i.e. “without force, without stealth and without permission” – an age-old lawyers’ mantra that has mercifully been translated from the original Latin in recent times.

But the earlier hearing before the CA left over for determination one issue, the Port’s contention that they had been deprived of property rights in breach of Article 1 of Protocol 1 (A1P1) of ECHR, because of a retrospective change of the law adverse to them. This is what last week’s decision is about.

The argument turned on when the 20 year period for use arose or whether it did not count. There had been previous controversy in the courts about this, and previous efforts to legislate. Various theories and solutions had been debated – was it enough to show 20 years after which, whatever happened, the right accrued? Or did one have to register the right to the “village green” within a set period after the landowner objected? In 2001 the law was changed or clarified so that public had to show 20 years continuous use. But this did not resolve the question of what could wipe out that usage or when it ceased to be continuous. This was the subject of the Commons Act 2006, which the Port said breached its A1P1 rights.

The key section is s.15 of the Commons Act 2006,. This included various criteria required for registering a village green. The relevant one is in s. 15(4):

“(4) This subsection applies (subject to subsection (5)) where—

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the commencement of this section; and

(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).”

Sub-section (5) then disapplied these grounds for registration when the landowner had already implemented a planning permission in respect of the land. The Port had not got this far, though the purpose of its exclusion of people from the beach was for this very reason.

Hence, there was a quid pro quo in the legislation- the public got 5 years after its use of the beach had been terminated to register its rights but not if in that period the landowner had built over it.

This made the law clear. But it also meant that in some cases rights which may have ceased to be registrable under the old law could now be registered. To that extent, the law was retrospective. Not every aspect of retrospective or retroactive law breaches A1P1. But it does require special justification.  What the court must do is to evaluate the degree of unfairness (if any) in the retrospective or retroactive effect of the legislation. In this connection retrospective or retroactive legislation which is passed in order to restore the legal position to what it was previously understood to be is less objectionable than legislation that changes the law. But even a change in the law may be justified under A1P1.

All this general law is now reasonably clear thanks to two recent Supreme Court cases,  AXA pleural plaques (see my post here with link to the judgment) and Salvesen on agricultural tenancies (post & judgment here).

The real A1P1 questions are, as ever,

(i) does the law in question serve a legitimate aim?

(ii) is it proportionate?

Legitimate aim

The aim of section 15 (4) was to give locals a longer period of grace because the threat to their continued use (some notice telling them they could only use the green by permission of the owner) was not obvious to members of the public. Contrast cases where the use as of right ceased after the 2006 Act came into force which would involve physical obstruction – and for which only a 2 year period was allowed for registration. Only a lawyer would pick up the first, but anyone would protest about the second.

The CA decided that the provision of the 5 year period was for a legitimate aim, and was consistent with the overall policy that once twenty years use as of right has been established it should be possible to get the land registered as a green.

Proportionality

The CA made a number of points in dismissing the Port’s case that the law had a disproportionate effect.

• The main one was that that the Port could have avoided getting into the predicament in which he finds himself: Leeds Group plc v Leeds City Council (No 2) [2011] EWCA Civ 1447 [2012] 1 WLR 1561 at [37]. On the basis of the April 2013 CA decision,
•  if the Port had displayed the bye-laws on the quayside or the sea wall the whole problem would have been eliminated. Anyway, all landowners had effectively been put on notice since the late 1990s that those using their land for recreational purposes may well be asserting a public right to do so if their use of the land is more than trivial or sporadic. The fact that the Port’s predicament has come about because of its own acquiescence in a long-standing state of affairs also means that the case for compensation was a particularly weak one.

The remaining points ([67]-[75] in Lewison LJ’s judgment) are detailed ones – but which demonstrate that it is far from easy to devise a law which strikes the right balance between the interests of landowners and members of the public.

Comment

This strikes me as a fairly easy decision against the A1P1 challenge to this statute. True, any provision with a dose of retrospectivity will need some measure of justification, but where there are firmly two sides to the legislative choice made, it is not difficult for the government to justify the choice it in fact made.  A1P1 certainly has teeth, as recent decisions have shown – e.g. here – but this is not one in which they were – quite rightly – bared.

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