High tidemark for village greens?

In February 2015, the Supreme Court looked again at the ability of the public to protect its use of certain tracts of land as a town or village green. Such registrations can be and are used by objectors to prevent or hinder potential development.

R (Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7 dealt with the issue of members of the public who claimed they had acquired rights to use part of the foreshore in Newhaven harbour for the walking of dogs, bathing, and other recreational uses in such a way that these could be registered as town or village green rights under the Commons Act 2006. The owners of the harbour (Newhaven Port and Properties Ltd) objected, and after a number of contradictory judgments in the lower courts, the Supreme Court delivered its ruling dismissing the application to register the part of the foreshore. In the judgment, the court considered the various points raised in the application, which are of general interest to landowners and advisors.

By-laws

The court dealt with the question of whether a beach could be a 'village green' swiftly and stated that case law on this was clear: provided that the statutory tests were met, a beach was capable of registration as a town or village green.

Of more interest to the court (and to most landowners and their advisors) was whether the rights exercised by the public were 'by right' or 'as of right'. Only rights acquired 'as of right' are capable of registration. In this case, the landowners had not expressly granted rights to the public to use the foreshore, but instead had issued by-laws which prevented or restricted the use of other parts of the harbour foreshore. The Supreme Court held that by issuing by-laws preventing bathing or sports and games in other parts of the harbour, the landowners had impliedly granted a right to conduct these activities in the remainder of the land, which included the area that was the subject of this claim. In effect, if a landowner prohibits certain activities on part of his or her land, then they may be impliedly permitting the public to use the remainder.

Confusingly for objectors trying to secure rights over land, the court held that the fact that the by-laws had not been displayed in public for many years was not an issue.

Statutory purposes

However, the court also considered whether registration under the 2006 Act was possible where the land was owned for statutory purposes, which would be incompatible with registration. By its nature, the foreshore was only above water for part of the day and, at high tide, it formed part of the navigable harbour that the landowner was statutorily obliged to maintain. Here, again, the Supreme Court found in favour of the landowner.

This case (following on from the 2014 case of R (Barkas) v North Yorkshire County Council [2014] UKSC 31) seems to indicate that the courts are less likely to sympathise with those seeking to register rights which might restrict the free use of land by its owners; however, the ability of local objectors to use these rights to hinder development remains a real risk for developers.

Protection for developers (and their advisors) is often available in the form of indemnity insurance, and Stewart Title offers a number of products (including policies dealing with village green issues) that can assist developers.

Robert Kelly is commercial business development manager at Stewart Title

robert.kelly@stewart.com