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25 February 2015, 14:34
A privately owned beach cannot be listed as a village green to allow residents the right to use it, the UK's highest court has ruled.
Five Supreme Court justices unanimously allowed an appeal by Newhaven Port and Properties Ltd (NPP), the owner of West Beach.
NPP had challenged a decision by the Court of Appeal in March 2013 allowing an appeal by East Sussex County Council and Newhaven Town Council against an earlier ruling which quashed the registration of the beach as a village green because it fell within the port area.
The council agreed to register the 15 acres of beach, which is covered by the sea for 42% of the time and subject to 1931 byelaws regulating access and use, after an inquiry in July 2010.
The basis for registration was that it had been used by a significant number of local inhabitants ``as of right'' for a period of at least 20 years.
In November 2011, a judge said that words used by Parliament to define town or village green were broad enough to permit the registration of a tidal beach, provided certain tests were met.
But, the village green status of West Beach was incompatible with the statutory purpose for which the land was held.
This was a victory for NPP, which had argued it was always clear that the beach was part of the operational land of the harbour, and fenced off public access in 2006.
The Court of Appeal went on to rule that the ground upon which NPP succeeded - that registration was incompatible with its statutory powers and duties - was not sustainable.
But today, a panel of judges headed by the President, Lord Neuberger, upheld NPP's argument that the public enjoyed an implied licence arising from the byelaws and therefore the use was not "as of right".
Lord Carnwath said that it was not an historic beach, but one created artificially in relatively recent times, as a consequence of the harbour works.
Nor was public use accepted without question as the public were barred for some time after the end of the First World War, and their use only resumed in response to a public protest.
"There might well be a case for treating what followed as tolerated trespass, or use "as of right", had not the whole area been brought under formal regulation by the making of the byelaws."
Thereafter, the only possible inference was that the use was permitted by the harbour authorities and was therefore "by right".