The difference between public and private law – on a beach near me
1 November 2013
More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.
For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.
Holkham beach is a lovely place to be, clothes on or clothes off, and lots of people use it – apparently as many as 500,000 every year. But not everyone behaves themselves. In particular, there have been reports over the years of people having sex in the dunes, and others being understandably offended by this. It is difficult to tell from published sources (e.g.here from the landowner, and here from British Naturism) whether these offenders were necessarily naturists. The beach is busy with those who ordinarily wear clothes as well as those who do not – and, I suppose, you can only definitely identify offenders as naturists when they have finished having sex and they don’t put their clothes on.
Anyway, leading that aside, pressure grew for Something to be Done, not least via a Facebook page “Close Holkham naturist Beach”. The upshot was that the local landowner, Holkham Estate, after discussions with British Naturism, and Natural England (the public naturalist body) , decided to ban naturists from the beach with effect from 1st July 2013.
Outcry ensued in naturist circles. Things were complicated, because whereas the Estate owns the dunes, the Crown owns the area between mean high water mark (where the high tide comes into) and mean low water mark (where the low tide goes out to). Holkham beach is very flat, and so this stretch of sand in between is quite considerable.
So British Naturism wrote to the Crown Estate, presumably complaining that it had not been properly consulted on this change – its letter was drafted by David Wolfe QC. a leading public law barrister. It threatened judicial review proceedings. The Crown Estate, like any public authority, owes duties in public law to consult those likely to be affected by its actions – the classic example of this being the hospital closure cases where those affected (whether patients or hospitals) are or should be properly consulted on proposals.
The Crown Estate must have thought there was something in the points being made, so on 25 September 2013, its response was to lift its ban – but only on its land.
But Holkham Estate maintained its ban, for its land. The Estate, like any private landowner, can set rules applicable to those who want to use its land. It can say, as it does – if you want to use our sand dunes, wear clothes. Just as British Naturism can say – if you want to come to our convention, don’t wear clothes. Neither Holkham nor BN owe public law duties, even if others may be affected by their actions. And neither can be made the subject of judicial review proceedings.
So the upshot at the moment is that naturists can use the beach for swimming or sitting on, but if they want to lie around in the rather warmer (and drier) dunes, they have to put their clothes on.
A perfect illustration of the different effects of public and private law.
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