Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another: SC 25 Feb 2015

The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised by the appeal are, potentially at least, far more wide-ranging. Those points are (i) the nature of the public’s rights over coastal beaches, (ii) whether byelaws can give rise to an implied consent to the public to use land, and (iii) the interrelationship of the statutory law relating to village greens and other duties imposed by statute.’
Held: The appeal was allowed on both the second and third ground (Lord Carnwath concurring save as to the need for a decision on the third argument). The Commons Act 2006 could not operate in respect of the beach by reason of statutory incompatibility. The duty under section 15 of the Commons Act 2006 did not extend to an area held under the specific statutes relating to the Newhaven Harbour.


Lord Neuberger, President, Lady Hale, Deputy President, Lord Sumption, Lord Carnwath, Lord Hodge


[2015] UKSC 7, [2015] BLGR 232, [2015] AC 1547, [2015] 2 All ER 991, [2015] 2 WLR 601, [2015] WLR(D) 109, UKSC 2013/0102


Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video


Commons Act 2006, The Newhaven Harbour and Ouse Lower Navigation Act 1847, Newhaven Harbour Improvement Act 1878


England and Wales


CitedBlundell v Catterall 7-Nov-1821
The defendant used a beach ‘between the high-water mark and the low-water mark of the River Mersey’ at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who . .
CitedBarkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
At first instanceNewhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .
Appeal fromNewhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another CA 27-Mar-2013
The port challenged the proposed registration of part of the beach at Newhaven as a village green, saying that the result would be inconsistent with their performance of their statutory duties. . .
At CA (2)Newhaven Port and Properties Ltd, Regina (on The Application of) v Secretary of State for The Environment Food and Rural Affairs CA 14-Jun-2013
. .
CitedMace v Philcox 25-Jan-1864
The ‘sea-beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo’ had been used ‘from time immemorial’ by the public ‘as a place of public resort’, subject only to the corporation’s statutory powers to . .
CitedLlandudno Urban District Council v Woods 1899
A clergyman set up a pulpit and was holding services and delivering addresses on the seashore.
Held: An injunction was refused. The court discouraged actions for trespass on public highways where the inteference was trivial. In this case, . .
CitedBrinckman v Matley 1904
Members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea for bathing. . .
CitedBlount v Layard 1981
Public use rights to navigate or (less commonly) to fish, where secured by statute or user, were not inconsistent with private ownership of the land beneath the water.
Bowen LJ said: ‘that nothing worse can happen in a free country than to . .
CitedBehrens v Richards 1905
Buckley J refused an injunction sought by the owner of land leading to the foreshore against fishermen who used the land to gain access to the foreshore, although he held that the fishermen had established no public right of way by long user. . .
CitedAttorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .
WrongJones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .
CitedIn re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
CitedAyr Harbour Trustees v Oswald 1883
The appellant trustees could not competently preclude themselves from exercising their powers under the Ayr Harbour Act in respect of certain land acquired by them for the purposes of that statute bearing in mind that their discretionary powers were . .
CitedMann v Brodie HL 1885
The court analysed the differences between Scottish and English land law with regard to rights acquired by prescription. Although in both countries a right of public way may be acquired by prescription, it was in England never practically necessary . .
CitedKruse v Johnson QBD 16-May-1898
The validity of a by-law prohibiting the playing of music in a public place within fifty yards of any dwelling after being requested by a constable or resident of that dwelling to desist was upheld. A private citizen taxed with a criminal charge . .
CitedMcEvoy v Great Northern Railway Co 1900
The acquisition of an easement by prescription did not require a presumption of grant but the incapacity of the owner of the servient tenement to grant excluded prescription. . .
CitedMagistrates of Edinburgh v North British Railway Co SCS 1904
First Division of the Court of Session – A claim was made that a railway company, which was a statutory undertaker, was obliged to maintain a railway bridge over which a public right of way.
Held: There was insufficient evidence of public user . .
CitedMcGregor v Crieff Co-operative Society Ltd HL 1915
. .
CitedNew Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
CitedRegina v Doncaster Metropolitan Borough Council ex parte Braim 1986
The court considered whether the lease of part of Doncaster Common (not registered as such) fell within section 123(2A) of the 1972 Act.
Held: For over a century the public had, as of right, used Doncaster Common for what could be conveniently . .
CitedMills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
CitedHousden and Another v The Conservators of Wimbledon and Putney Commons CA 18-Mar-2008
The claimants sought to register a right of way over the common by virtue of use over forty years. The defendants denied that they were able to grant an easement inder the 1871 Act, and that therefore no claim could be laid under prescription.

Cited by:

CitedLancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
‘The principal issue in these two appeals relates to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for . .
Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 09 May 2022; Ref: scu.543271