The Newhaven beach case: comment by George Laurence QC

25th February 2015

The Supreme Court has overruled the advice of the Inspector that the beach at Newhaven should be registered as a village green on the grounds that the Dock Company’s unpublished bye laws impliedly permitted local people to use the beach for recreation and that section 15 of the Commons Act 2006 did not, as a matter of statutory construction, apply to land which had been acquired by a statutory undertaker and was held for statutory purposes which were incompatible with the continuing use of that land for those statutory purposes.

This result is obviously very disappointing for the inhabitants of Newhaven. But the speeches of the majority leave open the intriguing possibility that “members of the public have, as a matter of general law and irrespective of the wishes of the owner of the foreshore the right to use the foreshore for the purpose of bathing [plus associated recreational activities] as a matter of general common law”. See per Lords Neuberger and Hodge at paragraph 29. The Supreme Court examined this possibility with care even though it left the point undecided. If there is such a general common law right it would obviously trump any implied permission (such as that conferred by the bye laws in the case): you cannot confer on the public a revocable permission to do something they already have a general common law right to do.

From this it follows that in the case of beaches in England and Wales not owned by a statutory undertaker, the public may have a common law right of recreation which renders it unnecessary to seek protection by registering the beach as a green. Even if there is no such automatic common law right, Lords Neuberger and Hodge hold open the possibility that it might be possible for the general public as opposed to just the local inhabitants to acquire such a right by prescription. See for consideration of this possibility paragraph 37. In any event, there may well be future cases where beaches can be registered as village greens on the conventional basis.

It may thus well be that Newhaven will turn out to have paved the way for much greater and more wide-ranging protection for recreational use of the beaches of England and Wales than the result of the actual case suggests.

To read the full Judgement please click here.

George Laurence QC has specialised for many years in the law as it relates to access to the countryside. He appeared in the present case (with his colleague Edwin Simpson) for Newhaven Town Council. He has appeared in all of the eight modern cases on village greens to be decided by the House of Lords or Supreme Court since the Sunningwell case in 1999.

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