When is a beach not a beach? When it's a town and village green

Landowners and developers will, by now, be well aware that section 15 of the Commons Act 2006 (the CA 2006) provides that, in many cases, land can be registered as a town and village green (TVG) and therefore development on that land can be prevented if a significant number of local inhabitants have used the land, as of right, for lawful sports and pastimes for a period of at least 20 years. In accordance with section 61 of the CA 2006, land includes ‘land covered by water’. However, in R (Newhaven Port and Properties Ltd) v East Sussex County Council and another, the Court of Appeal has decided that it should also cover a tidal beach.

A breakwater, built as part of the port development at the mouth of the River Ouse in Newhaven, has caused an area of sand and silt to build up over time.  This area, known as West Beach, is covered by the sea for a significant proportion of every day, but was registered by the Council as a TVG under the CA 2006.  The owner of the land, the Port, sought judicial review of the Council’s decision to register the beach as a TVG and, at first instance, the registration was quashed.  However, the High Court’s decision was made only on the basis that registration was incompatible with, and would conflict with, the Port’s statutory powers and duties.  The case went on to the Court of Appeal as the Council challenged the quashing, and the Port cross-appealed on its various other grounds of opposition to the registration.  The Court of Appeal has now considered a number of arguments, and has given an interesting and comprehensive judgment, which may not make comfortable reading for developers…

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