High Tide Mark for Village Greens?

In February, 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” dealt with members of the public that 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 judgements in the lower courts, on 25 February 2015 the Supreme Court delivered its judgement dismissing the application to register the part of the foreshore. In its judgement, the Court considered the various points raised in the application which are of general interest to landowners and advisors.

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 and 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 the question of 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 byelaws which prevented or restricted the use of other parts of the harbour foreshore. The Supreme Court held that by issuing byelaws preventing bathing or sports and games in other parts of the harbour impliedly granted a right to conduct these activities in the remainder of the harbour, 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 on the remainder of his or her land.

Even more confusing for objectors trying to secure rights over land was the fact that the Court held that the byelaws not being displayed in public for many years was not an issue!

The Court also considered the question of 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 “R (Barkas) v North Yorkshire County Council”) 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.

To discuss the issues raised in this article or for any other queries you have regarding our products, please contact Robert Kelly on 07415 240 703 or [email protected].

Robert Kelly, Commercial Business Development Manager, Stewart Title Limited

Robert joined Stewart Title in 2013 after 25 years of experience as a Commercial Property lawyer specialising in development and portfolio management. This experience plays a vital part in his role working closely with the Property industry to use Indemnity Insurance to resolve title problems and speed up transactions.

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