The West Beach - Village Green
RIGHT OF WAY DECISION - 7th September 2015
The report by the Inspector at the Public Inquiry into the town council’s right of way application for West Beach has been received today.
The result is a partial victory for the town council – the Inspector agrees that the full width of the promenade is a right of way, but does not accept that the steps down to the sandy beach should also be a right of way. Unfortunately of course local people would need to use the steps to gain access to the sand.
Michael Lowe, the Inspector, found that the promenade is similar in nature to a private road where the presumption is that the full width of the way has been dedicated and there is no indication that the public have been restricted to any particular part of the promenade. Mr Lowe also concludes that parking is permitted on the northern and southern edges of the promenade.
On the issue of the steps, however, Mr Lowe decided that use of the steps was purely ancillary to the use of the beach for recreational purposes, which the Supreme Court in the village green case decided was by permission of the landowner as a result of the bye-laws. For the public to be using either the beach or the steps “as of right” they would have to have been doing so without permission.
As the decision is to amend the Order proposed by East Sussex County Council (by deleting the steps) the modified Order will have to be advertised and there will then be an opportunity for comments to be made. The town council will be considering the report carefully with the advice of its legal team before deciding what comments to make.
The Town Mayor of Newhaven, Councillor Steve Saunders, said “Although this is a partial victory, the decision of the Inspector is obviously very disappointing for both the town council and the people of Newhaven because it does not establish public access to the sand. As well as considering the town council’s reaction to the decision, we are continuing to work behind the scenes and still very much hope to meet face-to-face with the French directors of NPP”.
The full report from the Inspector can be found here.
WEST BEACH PUBLIC INQUIRY - FINAL DAY - 6th July 2015
The Public Inquiry into the town council’s application to establish a right of way to the sandy beach resumed today to hear the final summing up by the three legal teams involved for NPP, the town council and ESCC.
What actually happened was that NPP’s QC went first, giving his summary and argument about the legal issues involved in the case, followed by the town council’s barrister and then ESCC’s barrister. There was a final opportunity at the end for NPP’s QC to respond to some of the things said by the other two lawyers; and the Inspector asked a few questions as things went along.
I think it might be easiest for people to follow the arguments however if instead of providing separate summaries of what each lawyer said, I try and deal with the main issues one at a time, giving both sides of the argument. The actual arguments made are all about very complicated points of law and involved references to various previous legal cases – please bear in mind that I am not a lawyer!
So firstly, a recap – the town council has applied for amendments to be made to the Definitive Map and Statement (official record of rights of way) to show a right of way covering the full width of the promenade from where it meets the bottom of Fort Road westwards to the shingle beach and also extending down the steps to the sandy beach. The current Definitive Map shows a right of way along the back edge of the promenade only. The first ever Definitive Map from 1956 showed the full width of the promenade coloured in purple (but not the steps); the first revision of it in 1963 showed just a thin line along the back edge exactly as it is shown today. The differences between the 1956 Definitive Map and the 1963/today versions came to light during the research that was carried out for the village green application when it went to Public Inquiry.
So – the Town Council is arguing that some sort of mistake occurred between the 1956 and 1963 versions of the Definitive Map which has led to the original intention about the right of way being lost. We say that the fact that the full width of the promenade is shown coloured in on the 1956 version proves that it was originally intended that the full width of the promenade was intended to be a right of way. Moreover, correspondence found at the County Records office relating to the process gone through in the run up to the 1956 Map shows that at the time it was agreed that there was ample evidence of use of the promenade to access both the shingle and the sandy beaches. Some of the larger scale draft drawings at the County Records office appear to show shading on the steps to the sandy beach too and so we say that it seems likely that the steps were also intended to be included, but that this is not shown on the original Map because of the difficulties of delineating this at such a small scale by hand.
NPP argues that there has to be a discovery of new evidence for an amendment to be made to the Definitive Map on the basis that a mistake was made. The evidence from 1956 would have been readily available to ESCC officers in 1963 when it reviewed the map and so NPP says it cannot now be said to be newly discovered. It feels that the differences between the 1956 map and the 1963 one should have been picked up in 1963 and challenged then. It says that the definition of the width of the right of way should have been included in the Statement and not by colouring on the map and that the existence of the drawings showing the steps in the file at the County Records office is inconclusive.
The County Council agrees with the town council’s argument and feels that it is justification for agreeing the town council’s application. It says that the mistake occurred as part of the review process for the 1963 map and that there is no evidence that the change of width shown on the Map at this stage was deliberate. There is no reference to this footpath on the list of changes made on this version of the map. It was in the 1960s that the convention was agreed that the width of rights of way should be described in the Statement, rather than by colouring on the Map – and the mistake was that this didn’t happen.
The correspondence (and presumably the accompanying draft drawings) at the County Records office are records of discussions between the County Council, the British Transport Commission (who owned the port at the time) and the War Office (who owned the land nearer to the cliffs). These documents show that another route was originally discussed before the final one along the promenade was agreed by everyone concerned. The Town Council says that a letter from the British Transport Commission (BTC) dated 1954 agreeing to the route along the promenade amounts to an Express Dedication of the right of way – and that (in view of the colouring on the map produced in 1956) this must have included the full width of the promenade. ESCC agrees with this view. NPP argues that the letter does not amount to an express dedication and says that there is no evidence that the BTC agreed to the full width of the promenade. It argues that if, as seems likely, car parking was already taking place on the promenade before 1954 the BTC would not have agreed to the full width of the promenade because the cars would obstruct the right of way. ESCC responded to say that the use of the promenade for parking could be seen as an argument for the full width of the promenade being classified as a right of way because it would make it much harder for the parked cars to completely obstruct the right of way – pedestrians would always be able to walk around them (as in fact has always happened).
An additional argument in favour of our right of way application put forward by the town council relates to more modern evidence of actual use of the full width of the promenade and the steps by members of the public over a twenty year period up to the closure of the steps which we say was “as of right” – which in legal terms means that it must have been without force, without secrecy and without permission.
NPP argues that the provision of amusements and the existence of the bye-laws both have the effect of conferring permission on people to use the promenade, meaning that their use of it is not “as of right” (which it has to be to prove a right of way). It referred to a recent village green case at the Supreme Court which found that a piece of land provided by a local authority as a recreation ground and held by it under the Housing Act could not be classified as a village green because it had been deliberately laid out for recreational purposes and this meant that people had been given permission to use it. Newhaven town council’s own village green case at the Supreme Court found that the existence of the bye-laws (even though they were not displayed or made known to people) had the effect of conferring permission on people to use the beach – and NPP says this would also apply to the steps down to the beach.
Both the town council and ESCC point out that village green legislation is not identical to that relating to rights of way (which involves the Highways Act, rather than the Commons Act) and so these cases should not necessarily apply. Moreover, NPP is not contesting that there is an existing right of way along the promenade – it is not therefore possible for it to try and retrospectively apply arguments about conferring permission via bye-laws or the provision of amusements to the use of the full width of it. The bye-laws must be subservient to the rights of the public to use the right of way and can only be read as regulatory conditions about how these rights are to be exercised. NPP does not have a statutory duty to provide highways or recreational facilities (unlike the local authority in the case mentioned in the previous paragraph) which means that this case is very different from that one.
Just in case the Inspector feels that the bye-laws need to be drawn to people’s attention in order to count as giving them permission, NPP say that a notice was displayed at the entrance to the car park from 1991 which mentions the bye-laws. NTC says that there is no evidence that this was there then – the evidence at the village green public inquiry was that the bye-laws were not mentioned on any notices during the 20 year period 1986-2006. ESCC says that even if the notice was there in 1991, there is still plenty of evidence of people using the promenade for 20 years prior to that; moreover the notice only related to vehicle drivers and not to pedestrians using the right of way.
NPP argues that there is a statutory incompatibility between the use of the promenade as a right of way and the operations of the port and its use as a car park and points out that the issue of statutory incompatibility was another reason why the town council’s village green application failed at the Supreme Court. The promenade has been used from time to time for the mooring of jack-up barges, or for the construction of bonios or the decommissioning of fishing vessels and this use is incompatible with the use of the full width as a right of way.
The town council and ESCC make the same argument about village green legislation not being the same as rights of way legislation. Additionally we say that the use of the promenade has not interfered with the occasional use of it as described by NPP. Because it is dry land the incompatibility issue is much less applicable. The port’s operational use of the promenade has only been very occasional, sporadic and temporary. The cars parked on the promenade are also temporary and do not permanently or fully obstruct the right of way. The promenade can be regarded as a shared space in the same way as other rights of way are - for instance canal tow paths, or farmyards, or streets where markets take place.
Moreover, ESCC pointed out that there are existing measures in place to deal with situations where the use of a right of way becomes incompatible with its use by the landowner – temporary or permanent stopping up orders or diversions can be obtained. This, it claims, is another reason why the Supreme Court decision about our village green application should not apply here. No such measures exist with regard to village greens so any future issue of incompatibility could not have been dealt with in this way. So far as this right of way is concerned, there has been no issue of incompatibility so far, and if one occurred in the future then it could be dealt with using the existing measures. Finally, it was suggested that a “limitation” could be placed upon the order creating the right of way across the full width of the promenade to specifically permit the car parking and occasional car use.
So far as the steps are concerned, NPP argues that a right of way must have a destination – and that as the beach is closed and is somewhere that the Supreme Court found that people did not have a right to go, the steps cannot be a right of way. NTC and ESCC say that a right of way can be a cul de sac – for instance to a viewpoint, or leading to private land - and there is nothing preventing a right of way being granted to somewhere that people need permission to go to.
In case all its arguments so far fail, the town council also made a fourth argument – that a common law right to use the promenade arose before the current bye-laws came into force in 1931. Evidence provided by local elderly residents testified to the use of the promenade and beach by local inhabitants between the re-opening of the area (by force by local people re-establishing their rights, as reported in a local paper) in 1921 following the end of the First World War and 1931. The overt use of the area during this period (the owners allowed the gate to be broken down and did not attempt to re-instate it) can be seen as the owner’s intention to dedicate a right of way – and in this case a 20 year qualifying period is not required. NPP pointed out that there had been a previous set of bye-laws passed in 1895. NTC and ESCC say that these bye-laws were more limited in nature than those of 1931. Moreover, the legal standing of the process undertaken in 1956 to produce the first Definitive Map was that this was a recording of existing rights of way which had been established by long use of the public – so it can be argued that the common law right of way has always existed.
A final argument raised by the town council relates to a suggestion made by the Supreme Court in its decision about our village green case that there might be a possible common law right in general for people to use the foreshore – the town council invited the Inspector to make a finding about this (he is perhaps unlikely to accept this invitation – the Supreme Court itself was reluctant to make a decision about this because it is exceedingly complicated!)
The Inspector has now gone away to write his report. He commented that the case had brought up almost the full gamut of legislation relating to rights of way and that no-one should hold their breath whilst he was writing it as it would take him some time! So we will now just have to wait
WEST BEACH RIGHT OF WAY PUBLIC INQUIRY
DAY ONE - 2nd June 2015
The first day of the Public Inquiry took place today at Shakespeare Hall in the rather cold and echoey surroundings of the sports hall.
The town council made this application during the long battle to try and get village green status for the beach when it was found that the current definitive map (official record of rights of way) does not include a right of way down the steps to the sandy beach. It was also discovered that the original Definitive Map from 1956 showed a right of way extending the full width of the promenade, but that the current Definitive Map only shows a thin line. The town council accordingly applied for amendments to be made to the current Definitive Map reinstating the right of way to the full width of the promenade and extending it down the steps to the sand.
After introductory statements from all parties, participants at the Inquiry looked closely at the original Definitive Map from 1956, which shows the full width of the promenade coloured mauve, and the revised Definitive Map of 1963 which shows a thin line only. We also looked at the background documents to both maps including various drafts. There was some discussion about whether the steps were also coloured in some of the earlier drafts but this was very hard to see due to the exceedingly small scale of the maps.
During the afternoon Matthew Harper, Senior Rights of Way officer appeared as a witness for ESCC explaining why ESCC had agreed to make the order amending the Definitive Map as requested by the town council. The reasons included the evidence of the original Definitive Map, the ample evidence of use submitted by the town council and the lack of any evidence of incompatibility between the use of the promenade or steps with port operations.
Later in the afternoon Mr Harper was extensively cross examined by NPP's QC. He was taken through the correspondence from the 1950s when the original map was being drawn up. From this correspondence it was clear that there was an early proposal to define the right of way as being along the foot of the cliffs but it was felt that this would be dangerous because of the risk of cliff falls. The eventual route along the promenade was agreed by British Rail, the Urban District Council and the War Department as being the best solution in 1954.
NPP's QC appeared to be suggesting that this might mean that the promenade was not in fact the route generally used by people at the time. Mr Harper however disputed this suggestion saying that on the contrary there appeared to have been plenty of user evidence at the time.
NPP's QC drew attention to the fact that none of the correspondence from the 1950s mentions the width of the path. Mr Harper suggested that this might indicate that no-one had any intention of limiting the width in any way and that everyone assumed that it would take up the full width of the promenade. Mr Harper also pointed out that there were draft plans in the same correspondence file which clearly showed the full width of the promenade coloured in.
The Inquiry resumes tomorrow. Mr Harper will continue to be cross examined by NPP's QC, probably for the whole morning. Our witnesses should appear after lunch. Spare a thought for Matthew Harper who has to spend his evening and night in purdah because he is in the middle of being cross examined.
DAY TWO - 3rd June 2015
98 year old Newhaven resident, Peter Bailey, appeared as a witness for the town council this morning, giving evidence about his use of the beach and how he got there as a child in the 1920s and as a young man in the 1930s and after the war.
Once Peter had finished his evidence, the Inquiry adjourned in order to move to Meeching Hall - everyone had been finding the echoey acoustics at Shakespeare Hall very hard going yesterday.
When the Inquiry reconvened at midday, NPP's QC continued his cross examination of Matthew Harper, the Senior Rights of Way officer from ESCC. Following some further discussions about the correspondence surrounding the creation of the original Definitive Map in the 1950s, Mr Harper was asked about bye law notices and also about car parking on the promenade. NPP's QC was making the point that parked cars would obstruct the public's use of the full width of the promenade. Mr Harper had already given evidence that he felt that this obstruction was sporadic in nature because the cars only parked there for short periods of time.
After lunch we continued with NPP's QC's cross examination of Mr Harper regarding parked cars and other potential obstructions on the promenade such as cranes - all of which Mr Harper felt were only temporary obstructions which did not materially affect the public's ability to access the promenade.
Following this the Inspector spoke about some of the issues he was particularly interested about with regard to the evidence he had heard so far. Some of these ideas seemed promising for the town council's application - for instance he felt that it might be possible for a right of way to be a cul-de-sac (for instance the steps leading to a closed beach); and others seemed less promising - for instance he talked of the possibility of the full width of the promenade having been coloured in on the original Definitive Map by a lowly employee whose job it was to draw things and colour them in, and who did not understand the importance of what they were doing.
Most of the town council's witnesses had turned up to give their evidence this afternoon and some of them could not return tomorrow despite the fact that the Inquiry was running rather behind schedule. Accordingly, Mr Harper's evidence was abandoned for the time being (he will have to remain in purdah overnight again and will return to be re-examined by ESCC's barrister and the town council's barrister tomorrow morning). Three of the town council's witnesses were then heard and gave evidence about their use of the promenade to access the sandy beach, the breakwater, the amusements and the shingle beach. They were also taken through questions about byelaw notices, cars parked on the promenade and other potential obstructions to their use of it.
The Inquiry resumes tomorrow at 10am at Meeching Hall. It is anticipated that all the remaining witnesses, both for the town council and for NPP will be heard tomorrow. Following that the Inquiry is likely to adjourn and reconvene on another date within six weeks for a day of legal arguments - the lawyers on all sides have asked for more time to draw up their closing arguments in the light of the evidence that has emerged so far.
DAY THREE - 4th June 2015
The re-examination of Matthew Harper, Senior Rights of Way Officer for ESCC, by his own barrister was completed first this morning - Mr Harper was taken back over some points relating to the original plans and correspondence relating to the original Definitive Map in 1956 in order to clarify one or two issues.
Following a brief mid morning break it was the turn of the remaining four of the town council's witnesses to give their evidence. All four spoke of their use of the promenade to access the sandy and shingle beaches, the breakwater and the amusements; all four were also asked about notices, car parking and about various incidents when there were things going on around the promenade area, such as the construction of the "bonios" placed around the lighthouse in the early 1990s, or another occasion when a couple of fishing vessels were winched out of the sea onto the promenade to be broken up.
After lunch it was the turn of NPP's witnesses. The Port Manager spoke about the possible need to use the promenade for the berthing of jack up barges and other vessels relating to the wind farm. He also produced photos and car park receipts proving the extent of the use of the promenade for parking. During cross examination, ESCC's barrister pointed out that there was no specific mention of any development proposals for the promenade or the West Beach in the Port Masterplan. NPP's own barrister asked whether the port would be agreeable to allowing regulated recreational use of the area by agreement with the town council - the Port Manager said that this was a decision for the Board of Directors of NPP and he could not comment.
The Harbourmaster gave evidence about the use of the promenade by jack up barges a couple of years ago and also about some of the other activities already mentioned (winching out of fishing vessels etc). He was asked how far west along the promenade it would be at all practical to berth jack up barges and explained that it was the draft of the tug towing the barge which would limit its ability to use shallow water - he estimated that it would be possible for such a tug to get up to about half way along the promenade from the eastern end at high tide. ESCC's barrister asked where the photos of the fishing vessels and the bonios being winched by crane came from. The Harbourmaster said they were private photos taken by port employees. ESCC's barrister remarked that this indicated that these events were unusual and this was why port employees thought it worth taking photos.
NPP's last witness was called largely to give evidence about a particular sign to the east of the kiosk at the entrance to the car park. There was considerable discussion about this sign (which was also the main one all the town council's witnesses were asked about.) The sign mentions the harbour bye laws and the debate centred around when this sign might have been first erected, and whether it had always referred to the bye laws, or whether the reference to the bye laws might have been added at some point. Just to complicate the issue, it emerged that some of the sign is thought to have been hand painted, and some of it to have been printed - and each line of the sign is in a different style of font, leading to a possible interpretation that different parts of the sign had been created at different times.
All the evidence has now been heard. What remains is for the summing up by the three lawyers to be delivered and responded to. As mentioned yesterday, the lawyers have asked for more time to reflect and consider what they are going to say in the light of the evidence heard. Accordingly, the Inquiry has adjourned; it will not continue tomorrow, but instead will reconvene on Monday 6th July at 12 noon - once again at Meeching Hall.
It is clear that this issue, like the village green one, will be decided on complicated and difficult legal arguments. NPP does not dispute that the full width of the promenade has been used by thousands of people over the years visiting the sandy beach, the shingle beach, the breakwater and the amusements; or that thousands of people have descended the steps to the sandy beach. Whether the full width of the promenade plus the steps can be registered as a right of way will, however, hinge on things like whether the cars parked on the promenade materially prevent the use of the right of way; whether the bye-laws were advertised by the car park entrance during the 20 year period being argued about (because they can be argued to be giving people permission to use the promenade); whether the occasional use of the promenade for port related purposes materially obstructed the public's use of the promenade; and what exactly can be inferred from the fact that the original 1956 Definitive Map shows the whole of the promenade coloured in mauve.
Incidentally, in case anyone is wondering, the main reason the town council applied to have the full width of the promenade reinstated on the Definitive Map as a right of way is quite simply to provide access to the top of the steps. If the right of way remains a thin line along the landward side of the promenade it is difficult to connect this to a right of way down the steps because people using the steps clearly approached them from lots of different directions along and over the promenade, rather than all using one narrow approach.
11th May 2015
The Public Inquir into the Town Council's right of way application will be held from 2nd - 5th June at Sheakespeare Hall, Fort Road, Newhaven.
25th February 2015
The Supreme Court has handed down its judgement this morning in the case for the registration of the sandy West Beach in Newhaven as a village green – and it is very sad news for local residents who used the beach for generations prior to its closure by port owners NPP in 2006. The five judges have agreed to allow NPP’s appeal and decided that the beach cannot be registered as a village green.
The grounds given for the judgement are that the existence of the port byelaws, even though they were not drawn to the attention of the public, had the effect of conferring permission on the public to use the beach and that if village green status was granted this would create an incompatibility between the statutory power of the port authority to operate the port and the statutory rights of the users of the village green.
The Town Mayor of Newhaven, Councillor Judith Ost said “This is very disappointing news for the residents of Newhaven, who we know have been hoping and praying that our application to safeguard the beach for their use would succeed.
“The Town Council has done everything in its power to try and get the beach re-opened. When we asked local people in 2008 whether we should apply for village green status we received an overwhelming response with more than 1,000 people filling in forms pledging their support for the idea and saying how much they wanted the beach open. We have followed the wishes of local people and taken this to the highest court in the land.
“As well as pursuing the case through the courts, we have repeatedly tried to reach agreement with NPP outside the court. We have held private talks with them throughout the process asking them to allow the public to use the beach and discussing practical solutions to health and safety concerns. The Supreme Court has today found that the beach has been used by local people for generations by permission of the port authority – and we see no reason why local people cannot continue to do so.
“We still hope to persuade the port authority to grant permission again and call upon them to re-open talks with us immediately. NPP has the power to turn disappointment into joy by letting people back on to the beach this summer.
“Although we always knew we might lose the legal case, we thought we had a good chance of winning. The very fact that the case has gone all the way to the Supreme Court and that it has taken the judges so long to consider their verdict proves that we were right to think this – this was not a cut and dried issue, but one which has been the subject of intense debate amongst the finest legal experts in village green law in this country. If we had won we would have secured the rights of local people to use the beach in perpetuity.
“We have taken care to minimise the cost to Newhaven council tax payers by agreeing with NPP prior to this hearing that neither side would seek costs from the other. We have always said that we would very much have preferred to spend the money spent on legal costs on practical things like the repair of the steps to the beach. We only wish NPP had allowed us to do this.”
For a full timeline of what happened and when, please click here. Further information on the case can also be found by clicking on West Beach Village green on the left of this page. And for some light bedtime reading, the full judgement can be found here.
7th November 2014
The long running legal battle over village green status for the sandy West Beach in Newhaven reached its final stage earlier this week when the case was heard by the Supreme Court. The owners of the beach, Newhaven Port and Properties were appealing against the decision in 2013 by the Court of Appeal that the beach could be registered as a village green.
Five justices - Lord Neuberger, Lady Hale, Lord Sumption, Lord Carnwath and Lord Hodge – spent two days listening to arguments both for and against registration of the beach. They will now go away and consider what they have heard before writing their judgements.
The Town Mayor of Newhaven, Councillor Judith Ost, says “We know how passionately the people of Newhaven feel about the beach and how much they want to see it reopened. The issues surrounding this have now been considered by the highest court in the land and we hope very much that the judgement will be in our favour. If we win, the town council looks forward to working with the Port Authority to get the beach opened as soon as possible in a way that is safe for the public. If we lose, we will continue to try and work with the Port Authority in a co-operative way to get the beach open, as we always have.”
The judgement is expected to be received in the New Year.
22nd October 2014
The long running legal battle over village green status for the sandy West Beach in Newhaven will reach its final stage on Monday 3rd and Tuesday 4th November when the case will be heard by the Supreme Court. The owners of the beach, Newhaven Port and Properties are appealing against the decision made by the Appeal Court in March 2013 that the beach can be registered as a village green.
Both Newhaven Town Council, which made the original application for village green status, and East Sussex County Council, which is the Village Green registration authority, will be represented in Court.
The Town Mayor of Newhaven, Councillor Judith Ost, says “At last this issue, which is so close to the hearts of the residents of Newhaven, will be considered at the very highest level and a final decision made. We know that the people of Newhaven will be keeping their fingers firmly crossed that we can get the beach re-opened.”
NPP’s legal team will be making their case for an appeal on Monday; on Tuesday it will be the turn of ESCC and NTC’s legal teams to argue that the appeal should not be allowed.
The Supreme Court is situated in Parliament Square, London SW1P 3BD and members of the public are very welcome to attend the case. The hearing is due to start at 11am on Monday 3rd November, and the building opens to the public from 9.30am. The nearest underground station is Westminster.
If you are unable to get to London, why not watch it live online? The case is expected to be streamed live by Sky News and available on the Supreme Court website at www.supremecourt.uk
31st March 2014
The Supreme Court has provisionally timetabled the case to be heard starting on either 3rd or 4th November 2014.
The Supreme Court has now granted permission for the application by NPP to appeal against the decision made by the Court of Appeal on 27th March 2013.
Nothing further will be known (such as the date for the hearing) until NPP has confirmed that it wishes to continue with its appeal. NPP is required to formally notify the Court later this month
14th June 2013
The Court of Appeal has handed down its latest judgement this morning in the long running legal battle to get the sandy West Beach in Newhaven re-opened to the public by registering it as a village green. Newhaven Port and Properties (NPP), the owners of the beach, had argued that the village green legislation contained in the Commons Act 2006 was incompatible with the European Convention on Human Rights. The judge at the judicial review held in November 2011 dismissed this argument. NPP appealed against his judgement.
The Court of Appeal has upheld the original decision and NPP has lost its case.
This argument was heard separately from the other arguments which were heard in February because this was a case between NPP and the Government and did not directly involve East Sussex County Council or Newhaven Town Council.
The Mayor of Newhaven, Councillor Julie Carr, said “We are delighted with this victory for common sense, which confirms the decision handed down in February. It is a great shame that NPP are continuing to spend money on fighting this through the courts instead of on the repairs that are needed to re-open the beach. Another summer is now here, and the people of Newhaven still cannot enjoy the use of their beach. I appeal to NPP to accept the ruling of the court now and sit down and talk to the town council about how we can get the beach open for this summer without compromising port operations or the safety of the public”.
27th March 2013
WEST BEACH IS A VILLAGE GREEN!
The Court of Appeal has upheld the rights of local people to access Newhaven’s sandy West Beach in its judgement handed down today.
The three judges who sat at the Royal Courts of Justice in London for three days at the end of March have upheld the Appeal of East Sussex County Council and Newhaven Town Council against the decision made by the Judicial Review in November 2011. This means that the beach can be registered as a Village Green.
Councillor Carla Butler said “I am over the moon that the court has ruled in our favour. We still believe passionately that Newhaven port can be regenerated at the same time as securing leisure access to the sandy beach for the people of Newhaven. This is a victory for people power!”
The owners of the beach, Newhaven Port and Properties have immediately announced that they will seek permission to appeal to the Supreme Court. The Town Council is disappointed with this reaction and would very much like to co-operate with the port authority to find the best way forward to get the beach open quickly, safely and in a way that benefits both the port and the people of Newhaven.
The Mayor of Newhaven Councillor Graham Amy said: "The beach has been used safely by tens of thousands of people over the years. Its closure has ruined several Newhaven businesses and denied a generation of children a good time with the only beneficiaries being both sets of lawyers. One wonders what the many soldiers who lost their lives, fighting on the beaches to liberate France, would think of this desperately, sad situation. Let us hope that common sense eventually prevails."
Councillor Steve Saunders added “This is great news for the Town, the residents and all the people that enjoy the West Beach. I am looking forward to working constructively with the Port to ensure that everyone is able to benefit from this decision. We have many ideas for the area, to make it a safe and accessible resource that we can all enjoy. It has been a long and difficult road, but the journey appears to have come to an end and the right decision has been reached. Thanks should go out to all those that sent photos and evidence in support, to the officers and team at the Town Council and the patience of the local community. Let us all now work together and enjoy our beach once again. This is not a victory, so much as an opportunity to draw a line under an unfortunate time for the Town and the residents. A chance to go forward in partnership with the Port.”
1st March 2013
The legal battle to get Newhaven’s sandy West Beach re-opened to the public was taken to the Appeal Court this week.
The Appeal was heard at the Royal Courts of Justice, The Strand, London WC2A 2LL over three days on Tuesday, Wednesday and Thursday 26th-28th February. The Appeal was heard by three Judges – Lord Justice Richards, Lord Justice McFarlane and Lord Justice Lewison
Day one of the Appeal was devoted to arguments about the issue on which the Judicial Review was lost by East Sussex County Council – that registration would not be compatible with the statutory purpose (ie running a port) for which the land is held by the Port Authority because there is a conflict of statutory regimes.
At the end of the day, the three judges decided to reserve their position on this issue and asked to hear further arguments brought forward by the legal team for Newhaven Port and Properties on six issues they believed meant that the beach should not be registered as a Village Green.
On the second day these arguments from NPP were heard in detail. Following this, the judges decided that they only needed to hear submissions from ESCC and NTC on two of these.
The third day was taken up with these remaining two issues, with the hearing finishing at about 2.30pm.
The decision will not be announced immediately – the judges in the case will have to go away and consider their verdict, which it is expected will be received in a few weeks.
The Mayor of Newhaven, Councillor Graham Amy, said “We are hopeful that the outcome of the court case will be positive and that the Appeal will be granted. If successful we look forward to working closely with Newhaven Port and Properties to ensure that the beach is reopened to the mutual benefit of both the port and the people of Newhaven and in a way that does not adversely affect the operation of the port.”
25th February 2013
The Appeal against the decision made by the judge at the Judicial Review held in November 2011 not to allow the West Beach to be registered as a Village Green will be heard from 10am tomorrow, Tuesday 26th February at the Royal Courts of Justice, The Strand, London WC2A 2LL. It is expected that the case will take about 4 days.
The decision will not be announced immediately – the judges in the case will have to go away and consider their verdict, which will be delivered later.
East Sussex County Council is leading the Appeal in defence of its decision to register the Beach, which it made following a public inquiry in 2010 at which all the evidence was carefully considered by an Inspector on their behalf. Newhaven Town Council will be represented in court as the Second Appellant (the Town Council made the original application to register the beach as a Village Green). The respondent in the case is Newhaven Port and Properties, which owns the Beach and closed it in 2006 citing health and safety reasons.
At the Judicial Review, the judge, Mr Justice Ouseley, concluded that the beach could not be registered as a Village Green. He made this decision despite accepting that
• Newhaven Town Council provided significant evidence that the beach had been used by local people for more than 20 years as of right for lawful sports and pastimes.
• The Inspector at the Public Inquiry dealt with an unusual situation carefully, made the necessary factual findings, grappled with the issues, and produced a clear and reasoned recommendation which dealt with the issues raised.
• A village green does not have to be grassy, or in the middle of a village and that it does not matter that the land is covered by the tide for part of the day.
The reason that the beach could not be registered, in Mr Ouseley's opinion, was that registration would not be compatible with the statutory purpose (ie running a port) for which the land is held by the Port Authority because there is a conflict of statutory regimes. This was a last minute legal argument raised in writing by the legal team working for the Port Authority after the Judicial Review closed.
The Appeal will look closely at this point, which is disputed by both East Sussex County Council and Newhaven Town Council. Inevitably, it will also reconsider all the issues raised at both the Public Inquiry and the Judicial Review.
Q: Doesn’t the Queen own all beaches?
A: The Crown does own much of the foreshore (the area between the high tide and low tide
levels) around the coast – but it does not own the sandy beach within the harbour arm at Newhaven – this belongs to the Port Authority, Newhaven Port and Properties.
Q: Doesn’t a Village Green have to be green?
A: No – the definition of a village green is that it has to be land which has been used by the
people of a specific locality (Newhaven in this case) as of right for lawful sports and pastimes for at least 20 years. It doesn’t have to be grassy – there are plenty of other registered village greens that do not look like stereotypical village greens.
Q: How can you have a village green that is under water for part of every day?
A: This is one of the issues that has been thoroughly debated both at the Public Inquiry and at
the Judicial Review – and will, no doubt, be discussed again during the Appeal. However, there are other watery village greens – there is a lake in Wales for instance; Kingston Beach at Shoreham Harbour is a village green that is partially covered at high tide; and the Trap Grounds in Oxfordshire are a village green that consists of marshland, some of which is permanently under water. Many traditional village greens include a duck pond.
17th August 2012
The Town Council has now been notified that the Appeal into the decision made at the Judicial Review will be heard at the Royal Courts of Justice, Strand, London WC2, starting on either 25th or 26th February 2013. The case is expected to last 3 or 4 days.
4th May 2012
The Judge at the High Court, Mr Justice Ouseley, has granted East Sussex County Council and Newhaven Town Council leave to appeal against his decision to quash the registration of the West Beach as a Village Green.
The Town Council is continuing to take legal advice on this matter.
21st March 2012
The result of the Judicial Review into East Sussex County Council's decision to register the sandy West Beach as a village green has been announced this morning - and it is disappointing news for Newhaven's residents.
Mr Justice Ouseley, the judge in the case, has concluded that the beach cannot be registered as a village green. He has reached this decision despite accepting that
• Newhaven Town Council provided significant evidence that the beach had been used by local people for more than 20 years as of right for lawful sports and pastimes.
• The Inspector at the Public Inquiry dealt with an unusual situation carefully, made the necessary factual findings, grappled with the issues, and produced a clear and reasoned recommendation which dealt with the issues raised.
• A village green does not have to be grassy, or in the middle of a village and that it does not matter that the land is covered by the tide for part of the day.
The reason that the beach cannot be registered, in Mr Ouseley's opinion, is that registration is not compatible with the statutory purpose (ie running a port) for which the land is held by the Port Authority because there is a conflict of statutory regimes. This was a last minute legal argument raised by the legal team working for the Port Authority in writing after the Judicial Review closed.
Councillor Carla Butler said:
"This is a devastating blow to the morale of people in Newhaven, who have used the beach in exactly the same way as a village green is used for generations. At last week's Big Planning consultation event held by the Town Council to find out what people most wanted to see in Newhaven, the one thing that local people voted for more than anything else was to see the beach re-opened. NPP has won this stage of the battle on a legal technicality, but even the judge says that he would have preferred to hold that the beach was registrable. In all the years that the public have used the beach there has been no conflict between the operation of the port and the use of the beach - indeed photographic evidence was submitted by the town council in support of its application showing local families playing on the sand whilst a jack-up barge was moored there in the past."
The Mayor of Newhaven, Councillor Steve Saunders added "The recently produced Port Masterplan does not show the West Beach being used for any purposes at all. The Town Council strongly supports the current efforts being made by the Port Authority to regenerate the port and their bid for business from the proposed Rampion wind farm. However, we continue to see no reason why the use of the beach by the public should jeopardise this. I call upon NPP to do the right thing by the people of Newhaven. Re-opening the beach would immediately win the Port Authority huge public support. The Town Council continues to welcome discussions on the best way forward to restore public recreational use of the beach whilst safeguarding the operations of the port."
The Town Council is currently taking legal advice.
22nd November 2011
The Judicial Review into the decision by East Sussex County Council to register the West Beach as a Village Green went on for an extra day, not closing until 4.45pm on Friday 11th November. The arguments centred on a number of very complicated points of law, which were very thoroughly debated by QCs representing Newhaven Port and Properties and East Sussex County Council, and by barristers representing Defra and Newhaven Town Council.
No decision was made by the judge on the final day - he will now go away and make a written judgement. Unfortunately, there is another case which has recently been heard by the Court of Appeal which may have some bearing on one of the legal issues discussed and so the judge will wait to read the judgement of that case before publishing his own decision. This means that it is almost certain that the judgement will not be received before Christmas, and it is possible that it may take until February.
24th October 2011
The Judicial Review into the decision by East Sussex County Council to register the West Beach as a Village Green will take place at the Royal Courts of Justice, Strand, London WC2A 2LL from 10am on 8th November. It is expected that the case will continue on 9th and 10th November. This is a court case between Newhaven Port and Properties, who own the West Beach, and the County Council. The Town Council will be represented at the hearing as an interested party.
Meanwhile, the Town Council's application to amend the Definitive Map to show the right of way along the promenade as extending the full width of the promenade to the top of the steps to the sandy beach, as it did in the original Definitive Map produced in the 1950s has been submitted to the County Council. NPP's solicitors have submitted an objection to the application which is being considered by the Town Council's legal advisors.
10th June 2011:
Newhaven Town Council has been told this week that permission has been given by the High Court for a judicial review to take place into the decision made by East Sussex County Council to register the West Beach as a Village Green.
The judicial review will be a court case between Newhaven Port and Properties, who own the beach and want to keep it closed, and East Sussex County Council, who will be defending their decision. Newhaven Town Council will attend the hearing to support the County Council and make sure that all the arguments in favour of re-opening the beach for local residents are heard, but it is not directly involved in the litigation. The review will be looking at whether the County Council has made a decision that was illegal, illogical or unfair because of a defect in the process that was followed to reach the decision. Both the County Council and the Town Council believe strongly that there was no such defect in the process.
The bad news for Newhaven's residents is that although the judge has said that the hearing should take place as soon as possible, it is unlikely to take place before the court closes for its long holiday in August (courts move very slowly).
Town Mayor, Councillor Steve Saunders, says "We are disappointed at the further delays that the judicial review will mean to the re-opening of the West Beach. We would encourage Newhaven Port & Properties to consider a temporary concession to the people of the Town and allow access to the beach until the case is finally decided upon. Another summer is in danger of passing without us being allowed to enjoy the only sandy beach for miles around."
18th March 2011:
People have been asking us what’s going on about the West Beach now that the 60 days has expired, so here is an update:
As most people will know, the County Council’s Village Green Registration Panel met just before Christmas and decided to accept the Inspector’s recommendation that the beach should be registered as a Village Green, but also decided to defer actually registering it for 60 days. The reason for this was that Newhaven Port and Properties’ solicitors had stated that if the decision to register the beach was taken they would challenge it by applying to the High Court for a Judicial Review.
Shortly before the 60 days elapsed, the Port Authority's solicitors duly submitted their application for a Judicial Review. There are two stages to the Judicial Review process - first the application for it to be heard - which is likely to be considered by the Court within the next two to three months (this is quickly by Court standards); then, if the application is granted, the actual Judicial Review itself, which would be at the High Court in London some time later.
The Town Council is only too well aware of how frustrating this is for the people of Newhaven. The Port Authority is clearly determined to put as many obstacles and delays in our path as possible and keep the beach closed for as long as possible. The Town Council has asked the County Council to register the beach as a Village Green whilst the case is waiting to be heard, but they have said no to this. Although it would be possible for the Town Council to take legal action of its own against the County Council to try to force it to register the beach, our legal advisors have advised against this. It would involve both the Town Council and the County Council in two costly legal battles at once, which would not be the best use of public money. Clearly it is a better use of resources for the Town and County Councils to work together to vigorously defend the County Council’s decision to register the beach.
So far as the jack up barges parked on the beach are concerned, the Port Authority have informed us that they are only there on a temporary basis for the winter and will be taken back out to sea when the summer comes. We have also been told that the car park is closed on a temporary basis only.
We are sorry not to be able to give the people of Newhaven better news. We always knew that this was going to be a long battle. Please be assured, however, that we will continue to fight it.
22nd December 2010:
East Sussex County Council's Village Green Registration Panel met this morning (Wednesday 22nd December 2010) to decide whether or not to accept the recommendation of the Inspector at July's Public Inquiry to register the West Beach as a Village Green.
The Panel decided to accept the recommendation - but also chose to defer the registration of the beach for 60 days. This is because Newhaven Port & Properties' solicitors have said that they will seek a judicial review of the decision in the High Court and this could involve the County Council in substantial legal costs if the registration goes ahead straight away.
A judicial review would usually look at whether the County Council had reached a decision which was illegal, illogical or unfair because of a defect in the procedure that was followed. The High Court would only grant permission for a judicial review to be held if it felt there was an arguable case.
The Mayor, Councillor Graham Amy said "it is frustrating that Newhaven Port & Properties continue to delay the process, but the Town Council remains confident that the beach will eventually reopen as a Village Green".
The Inspector who sat at the Public Inquiry into the application for Village Green status for the West Beach, Newhaven in July has now made her recommendation. She recommends that the beach is registered as a Village Green.
The report from Miss Ruth Stockley, the Inspector appointed by the County Council, concludes: “... it is my recommendation that the Registration Authority should accede to the application and should add the Application Land to its register of town and village greens. The grounds for the registration should be that the statutory criteria contained in Section 15(4) of the Commons Act 2006 have been established in relation to the Application Land, namely a significant number of the inhabitants of the locality of the Parish of Newhaven have indulged as of right in lawful sports and pastimes on the Application Land for a period of at least 20 years ...”
The Inspector heard evidence about the public right of way which runs from Fort Road to the shingle beach west of the harbour arm. She has concluded that this right of way does not currently lead to the West Beach. However, she recommends that the current lack of such a right of way leading to the Beach is not a ground to reject the Application. It would be possible for the Town Council to make a separate application for a right of way to be registered using the same sort of evidence as for the Village Green application – that thousands of people have accessed the beach for more than 20 years.
The Public Inquiry took place at Meeching Hall, Newhaven from 6th to 8th July. The Inspector heard verbal evidence from 10 residents of Newhaven as well as from the Town Council and was presented with over 1,000 written statements of support from local people together with 61 more detailed evidence questionnaires.
The next stage in this process is for East Sussex County Council to make a decision as to whether they accept this recommendation.
The Mayor of Newhaven, Councillor Graham Amy, said “If the County Council does decide to register the beach as a Village Green, the Town Council very much hopes that the Port Authority, which owns the beach, will be willing to work with us to make the necessary repairs to the steps and sea wall and get the beach open for local people as soon as possible.
“We are very grateful for the help and support given by local residents in making this application – we couldn’t have done it without you!”
Newhaven Town Council applied to East Sussex County Council to give the Town's West Beach "Village Green" status. The sandy beach was closed at the beginning of 2008 by the owners Newhaven Port and Properties (NPP) on the grounds of health and safety. The French owned company say that the walls are in a dangerous condition and the beach has been closed for public safety. However, if Village Green status is confirmed NPP would be forced to open the beach back up to the public.
Village Green status is granted if local residents can prove they have used an open area as of right for activities such as kite flying, dog walking, picnicking and sporting activities for at least 20 years.
Throughout the summer of 2008 the Town Council was busy gathering evidence from local residents to support the application. Over 1,000 people filled in initial forms stating that they had used the beach and from these 60 people then filled in more detailed evidence questionnaires and agreed that, if necessary, they would be willing to appear in person to corroborate their evidence at any public inquiry that may be held. About 300 family photos taken on the beach between the 1930s and 2008 were brought in to the Town Council offices, where they were scanned, printed and made into an album of photographic evidence accompanied the application.
Once all the evidence had been gathered, the Town Council put together a 14 page Statement of Facts, which was submitted with the application. The application itself, a legal document, was filled in by the Town Council's solicitors.
The application was submitted to the County Council on Tuesday 16th December 2008.
Following this there wasw informal discussion between members of the Town Council’s West Beach working group and the owners of the beach.
During September 2009, the owners put forward a proposal to move the sandy beach to the western side of the breakwater. At this same meeting the owners said that regardless of any repair work to the sea wall and steps, they would still not allow public access to the beach.
The working group asked for full details of this proposal before the end of 2009. The Village Green application was put ‘on-hold’ until this information was received. As of January 2010, no further information had been supplied by the owners of the beach.
East Sussex County Council (ESCC) were asked to proceed with the Village Green application.
During March 2010 ESCC indicated that they would be arranging for a public inquiry to take place at the beginning of July.
Following this announcement a further two meetings took place with the owners following a request from the Council’s solicitor asking if they would re-open the beach whilst the Village Green inquiry was being organised.
The owners responded by saying that they would offer the beach to the Council at a peppercorn rent provided that NTC took responsibility for all public liability.
At a meeting on 19th April 2010 NPP said that they would put something in writing regarding a draft Heads of Terms agreement.
This was received at the NTC office by email at about 11.00am on 27th April 2010.
The offer was conditional of the draft Heads of Terms being agreed at the Council meeting on the following day and that furthermore, the Council formally resolve to withdraw the Village Green application.
Legal advice taken by the town clerk on this ‘offer’ from NPP showed that it would be illegal for the Council to make a decision at such short notice.
The reason being that Council cannot lawfully transact business which is not on the meeting agenda.
For items to be considered by Council they must be on a agenda which must be displayed