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Registering Newhaven Beach as a village green did not breach landowner's human rights, court rules


Retrospective legal provisions which enabled a community group to register a local beach as a 'village green' after the landowner had already prevented their use of it did not breach that landowner's human rights, the Court of Appeal has ruled.

The group had taken advantage of transitional provisions in the Commons Act which gave them five years from the date on which access was blocked to register the beach under legislation originally intended to prevent property development on town and village greens (TVGs). After the legislation was fully in force, they would only have had two years in which to do so.

The Court of Appeal had already reinstated the application, which landowner Newhaven Port and Properties had previously overturned, in separate legal proceedings earlier this year.

Lord Justice Lewison said that the relevant legislation was an interference with the landowner's right to "peaceful enjoyment of its possessions" because it "significantly restricts what activities the owner can carry out on registered land". However, European human rights law permits this type of interference for a "legitimate aim", providing the means of doing so are "reasonably proportionate", he said.

"The aim of [the transitional provisions] was to give local inhabitants a longer period of grace in order to take account of the fact that the threat to their continued use was not as obvious as in cases of post-Act cessation," he said. "In my judgment that ... is a legitimate aim, and is consistent with the overall policy that once twenty years use as of right has been established 'it should be possible ... to get the land registered as a green'."

"It was open to the Port to prevent the twenty years use as of right from coming into existence at all ... the Port's predicament has come about because of its own acquiescence in a long-standing state of affairs," he said.

Property litigation expert Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, said that the decision demonstrated the courts' "consistent and even-handed approach to the balance of competing human and private rights".

"The Court of Appeal recognised the landowner's human right to property but accepted the proportionate and reasonable statutory curtailment of that right in the wider public interest," he said.

"In light of this case, any landowner's challenge to the new grace period based on human rights would, in my view, now almost inevitably fail. I think that, if this issue was taken to the Supreme Court or the European Court of Human Rights, those courts would take the same approach as the Court of Appeal," he said.

The TVG regime allows land to be registered if it has been used "as of right" for recreational purposes for 20 years. Once registered, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the land or interrupt the public's use or enjoyment of it.

As a general rule, the land must be used for recreational purposes at the time that the application is made. If use ceased before the application was made, different rules apply depending on when the application was made. The Commons Act gives applicants up to five years to bring an application where use ceased before the Act came into force on 6 April 2007. Generally applicants have a two-year 'grace period', which will be reduced to one year in England when changes to the TVG regime included in the Growth and Infrastructure Act come into force. The grace period will remain two years in Wales.

In order for the regime to apply, the land must have been used 'as of right'. Also described as being 'as if of right', this means that users have used the land openly, without force, and without having been given permission to do so. The previous appeal considered whether the public had instead been granted use of the land 'by right', meaning with the express permission of the landowner. The Court of Appeal ruled that it had not been.

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