R (on the application of Newhaven Port & Properties Limited) (Appellant) v East Sussex County Council and another (Respondents)

Newhaven Port and Properties Limited (NPP) appealed against the decision of the Court of Appeal that the East Sussex County Council (County Council) was not wrong in law to register an area of land known as West Beach at Newhaven (the Beach) as a village green pursuant to the provisions of the Commons Act 2006. The Supreme Court allowed the appeal. The first issue was whether the fact that the Beach is part of the foreshore defeats the contention that the use by local inhabitants for sports and pastimes can have been "as of right", on the ground that the public had an implied licence to use the foreshore for such purposes and the implied right was never revoked in the case of the Beach. The second issue was whether, if that was not right, the public nonetheless had an implied licence to use the Beach, as part of the Harbour, in the light of the Byelaws. The third issue was whether, in any event, section 15 of the 2006 Act cannot be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function to which the land was to be put. The Supreme Court concluded that the appeal should be allowed on the basis of the second issue. The court held that the Byelaws impliedly permitted the public to access the harbour and engage in various sports and activities. If such was the case, it followed that there was a licence, which rendered the activity in question being carried on "by right" not "as of right". The fact that permission could be subsequently withdrawn by an action on the part of the authority, such as fencing off, merely meant that, when and if that occurred, the permission was withdrawn, so that any subsequent continuation of the activity concerned became a trespass and would therefore normally be "as of right".