The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council  SC 7 25 February 2015- read judgment
Late February is not necessarily the best time of year for a bit of UK sea swimming. But the Supreme Court has just come out with interesting judgments about whether there is a right to go to the beach and swim from it. For reasons I shall explain, they were anxious not to decide the point, but there are some strong hints, particularly in the judgment of Lord Carnwath as to what the right answer is, though some hesitation as to how to arrive at that answer.
It arose in a most curious setting – East Sussex’s desire to register West Beach, Newhaven as a village green under the Commons Act 2006. But a beach cannot be a village green, you may say. But it is, said the Court of Appeal (see Rosalind English’s post here), and the Supreme Court did not hear argument on that point.
Now to the background for the present decision.
West Beach, Newhaven, has been used by local inhabitants as of right for lawful sports and pastimes for decades. It was created by the accretion of sand caused by the construction of a breakwater for the purposes of the nearby harbour. The beach is entirely covered by sea at high tide, and thus consists of “foreshore” – the area between the high and low water mark – see my post on this here, in the context of naturists.
In April 2006, the owner of West Beach and the neighbouring port, Newhaven Port and Properties Ltd (NPP), the appellant, fenced off public access to West Beach for future development purposes. NPP had vested in it various statutory powers and duties as owner of the port, including the power to make bye-laws for the harbour including the beach.
East Sussex registered the beach. NPP challenged the registration.
The judge, Ouseley J, had found in favour of NPP on the basis that registration was incompatible with its exercise of its statutory functions, and this finding was challenged by the County Council. The judge’s rejection of all NPP’s other grounds of challenge was appealed, in turn, by NPP.
The Court of Appeal allowed the Councils’ appeal. The Supreme Court has now allowed NPP’s appeal.
The determinative issues
s.15 of the Commons Act requires that the usage in question must be “as of right”. This rather arcane phrase generally means “without any right” – perversely, you might think. It is to be contrasted with “by right.” So if the port had licensed people to use the beach, it would not be “as of right” and the beach could not be registered.
At  Lord Neuberger set out the three issues which arose on the appeal. I summarise:
1. The first was whether the fact that the Beach is part of the foreshore defeats the contention that the user by local inhabitants can have been “as of right”, on the ground that the public had an implied licence to use the foreshore, and the implied right was never revoked in the case of the Beach.
2. The second issue was whether, if that is not right, the public had an implied licence to use the Beach, as part of the Harbour, in the light of the Byelaws.
3. The third issue was whether section 15 of the 2006 Act cannot be interpreted so as to enable registration if such registration was incompatible with some other statutory function to which the land was to be put.
The Supreme Court decided, on issue 2, that the bye-laws did impliedly licence the public to use the beach, and further, on issue 3, that there was a statutory incompatibility between NPP’s harbour functions and the registration of the beach.
And because of these conclusions, NPP’s appeal was allowed
That left issue 1, within which the general “right to the beach” point arose.
A right to the beach?
The Supreme Court identified three possible ways in which the public might use a beach, short of express permission. The first was a freestanding right. The second was that the owner of the foreshore might be presumed to allow the public to use his beach unless the owner positively says they cannot. The third is that bathers are generally trespassers.
The curiosity about the case is that only if the third were correct would the Council be able to register the beach. If the public has an actual or presumed right to do so, their use would not be “as of right” but would be “by right”.
And the curiosity about the appeal is that NPP did not positively argue that there was a common law right to use the beach, which would have defeated the claim for registration. It favoured the presumed right point. Whereas the Council said that bathers are generally trespassers.
It is for this reason that the Supreme Court was anxious not to decide, one way or another, whether the public does or does not have a general right to go to the beach and swim.
But the Court was not hugely impressed by the learning which suggested that people do not have the right to swim. The critical case 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.
The Court in Blundell rejected the argument that the activity was subject of a common law right, but the majority said 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. Best J dissented, citing a mediaeval lawyer, Bracton, who said (in Latin) that by natural law, these are common to all; running water, air, the sea, and the shores of the sea, as though accessories of the sea.
“No-one therefore is forbidden access to the seashore”
But the majority in Blundell decided that because sea swimming had only become recently a popular pastime, it could not be said to have occurred since time immemorial (usually, 1189 – don’t ask), and therefore could not be a custom or usage. Blundell was subsequently followed, but the point had never got to the House of Lords or Supreme Court before. Textbook writers have been critical of it, and the Scots courts have reached a different conclusion.
At which tantalising point, 4 Justices in the SC stopped, considering that because the point was of considerable importance they should not decide it as no-one was positively arguing for such a right.
Lord Carnwath went a bit further. He cast doubt on whether the ruling in Blundell was as wide as claimed – it was all about bringing bathing carriages on to the beach, in circumstances where there was a clash with private rights to fish with stake nets. Bathing carriages were in the early 19th century thought “essential” for bathing:
Decency must prevent all females, and infirmity many men, from bathing, except from a machine.
He thought the Court of Appeal, when the matter came before it in 1904 in a later case, Brinckman, should have re-opened the issue, rather than just saying that it had been decided by Blundell. He recorded the move of Scottish law towards recognising a public right
without feeling inhibited by authorities from the other side of the border
Lord Carnwath, and the Court’s judicial assistants (given a welcome recognition at ) carried out a comparative law exercise on this issue which everybody had decided not to decide. As ever, it is interesting. And, at times lyrical. A Florida judge in White v Hughes 139 Fla 54, (1939), Brown J, launched forth:
There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight …
After quoting Byron on the primeval quality of the “wild waves’ play”, he continued:
“The constant enjoyment of this privilege of thus using the ocean and its fore-shore for ages without dispute should prove sufficient to establish it as an American common law right, similar to that of fishing in the sea, even if this right had not come down to us as a part of the English common law, which it undoubtedly has“.
From Florida to Oregon, whose Supreme Court was concerned not simply with the foreshore, but the “dry sand area” between the vegetation line and the foreshore, used as a recreational adjunct for use of the foreshore and thus amounting to a public right to use it. Then to New Jersey, where its Supreme Court pronounced that
the public must be given both access to and use of privately-owned dry sand areas as reasonably necessary. ….. private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.
Lord Carnwath drew from all of this at 
the apparently universal recognition of the recreational use of the foreshore in practice, but on the other hand….the continuing uncertainty….as to the legal basis for that use and the wide variety of legal methods (statutory or judicial) used to resolve it.
before addressing the three possibilities, (a) prescriptive or customary right (b) an implied licence and (c) trespass tolerated or acquiesced by the owner – with the last being found by the CA.
The trespass option got short shrift at  – it defied common sense and flies in the face of public understanding.
Lord Carnwath thought that the implied licence route was the right one, in the circumstances of this case, where the beach had been created artificially in modern times as a consequence of the statutory harbour works. More generally, public use of beaches was, if not in exercise of a public right, impliedly permitted by their owners.
Unquestionably Lord Carnwath wished to find some legal way to recognise a public right to use beaches, whether via the concept of a general right or an implied permission. But neither he nor the 4 Justices who said rather less on the topic wished to be drawn to decide whether there should be a 21st century general right to use beaches and bathe – given that no-one was positively arguing for it. Rather frustrating, but one can readily understand why they were reluctant to say anything definitive. And a good example of how the arguments put in a case shape the law determined by the judges.
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