Newhaven Port and Properties Ltd, R (on the application of) v East Sussex County Council & Anor

The issue in this case is whether an area of beach known as West Beach in Newhaven, East Sussex, is registrable as a town or village green pursuant to s.15 of the Commons Act 2006. In the Administrative Court, Ouseley J rejected all but one of the arguments against registration advanced by the sole objector, Newhaven Port and Properties Limited ("NPP"). The one ground of challenge which he accepted was, in summary, that registration was incompatible with NPP's statutory powers and duties. East Sussex County Council (the registration authority) and Newhaven Town Council (which made the application for registration) both appeal against that finding. NPP opposes the appeals in respect of that ground and, by way of respondent's notice, seeks to rely in addition on most of the grounds that were rejected by the judge.

The judgment below starts with a convenient summary of the background facts:

The law relating to town and village greens has been the subject of detailed examination by the House of Lords and Supreme Court in a series of recent cases: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335 ("Sunningwell"), R (Beresford) v Sunderland City Council [2004] 1 AC 889 ("Beresford"), Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 (“Oxfordshire"), and R (Lewis) v Redcar and Cleveland Borough Council (No.2) [2010] 2 AC 70 ("Lewis"). The background to the present legislation is considered at length in those cases (see in particular Oxfordshire at paras 3-28). I propose to give only the barest outline of the successive legislative stages.

Provision for the registration of town or village greens was introduced by the Commons Registration Act 1965. Section 22(1) defined "town or village green" as follows:

The definition of town or village green in s.22(1) of the 1965 Act was amended by the Countryside and Rights of Way Act 2000: limb (c) was replaced by the words "which falls within subsection (1A) of this section", and a new subsection (1A) was inserted as follows:

The relevant provisions of the 1965 Act were then replaced in their entirety by s.15 of the Commons Act 2006, which provides, so far as material:

The present case raises various points concerning the meaning and application of those provisions. The starting point for any such discussion, however, is the uncontroversial proposition that use "as of right" means "nec vi, nec clam, nec precario", that is "not by force, nor stealth, nor the licence of the owner": see e.g. Beresford para 3 and Lewis para 20.

The grounds of challenge in the court below were, in summary, that (1) a tidal beach cannot be registered as a town or village green, on the proper construction of the Commons Act 2006; (2) even if a tidal beach can in principle be registered, West Beach itself is not registrable on a lawful analysis of the facts relating to its actual use; (3) land which, in part, has no fixed boundary (in this case because of the effect of the tides) cannot be registered; (4) since the use of West Beach was regulated by byelaws, it was used by the public precariously, in the sense of being by licence, and not as of right; (5) use of the foreshore was presumed, rebuttably, to be by permission of the Crown or its successors, and there was no need to show that the licence had been communicated expressly by word or conduct; (6) use of West Beach by the public could not have been as of right since the public had no right of access to it; (7) since West Beach was part of the operational land of the port and was subject to NPP's byelaw making powers and the existing byelaws, registration was incompatible with NPP's statutory powers and duties; and (8) s.15(4) of the Commons Act 2006 is incompatible with article 1 of protocol 1 to the European Convention on Human Rights, as an interference with the landowner's property rights, in creating an unjustified retrospective power to register land on the basis of recreational use that ceased in 2006, before s.15(4) was brought into force.

As I have indicated, the judge found in favour of NPP on issue (7), which is the subject of the appeals by the county council and the town council and which I will address first. The judge's findings on issues (1) to (6) are challenged by NPP's respondent's notice, though I will consider them in the slightly different order in which they were deployed in oral submissions. The judge's finding on issue (8) is also the subject of appeal but since that issue is dependent on the outcome of the present appeals and it also involves the Secretary of State for the Environment, Food and Rural Affairs as an interested party, it has been adjourned to be heard separately if the need arises.

NPP has various statutory functions in relation to the maintenance and operation of the port. They include the powers and duties arising under s.49 of the Newhaven Harbour and Ouse Lower Navigation Act 1847, and those created by the Sealink (Transfer of Newhaven Harbour) Harbour Revision Order 1991 by which NPP became the harbour authority for Newhaven. They also include the powers conferred by the Harbours, Docks and Piers Clauses Act 1847 (as amended by the Statute Law (Repeals) Act 1993) to make byelaws for regulating the use of the harbour, the admission of vessels and related matters. Byelaws made in 1931 by the then harbour authority, Southern Railway Company, include several provisions restricting activities within the area of the port, including West Beach.

NPP's case is that registration of West Beach as a town or village green would be liable to conflict in various ways with those statutory functions. Potential conflict with the byelaw-making powers would arise from the fact that once the beach was registered as a town or village green it would be open to the district council to make a scheme regulating its use under the Commons Act 1899. Registration as a town or village green would interfere with the operation and development of the port. Ouseley J summarised that aspect of NPP's case at para 127 of his judgment:

Before the judge, submissions on the issue of conflict were advanced by reference to British Transport Commission v Westmorland County Council [1958] AC 126 ("British Transport Commission", or "BTC") and Western Power Distribution Investments Ltd v Cardiff County Council [2011] EWHC 300 (Admin) ("Western Power"), to both of which I will return. Having considered those cases, the judge said:

I agree with the appellants' contention that that reasoning is seriously flawed. In so far as the judge was considering the matter in terms of capacity to grant rights, the point is misconceived because the grant of rights has no place in this context. Unlike the law relating to public highways and private rights of way, registration as a town or village green does not depend on actual or presumed grant or on actual or implied dedication: see, for example, Sunningwell at page 359A. It depends instead on use of a specified character over a specified period. Accordingly, the capacity of the landowner to grant rights over the land or to make a dedication does not enter into the picture.

In so far as the judge was considering the matter in terms of capacity to give permission or consent to the use, the point is misconceived because it simply makes no sense to talk in terms of the landowner giving permission for use as of right: for use to be as of right, it must be "nec precario" (without the licence of the landowner). Since absence of permission is an essential condition of the use on which registration as a town or village green is based, the fact that the landowner lacks capacity or power to give permission cannot operate to defeat such registration. (Counsel suggested that the judge must have meant that by reason of incompatibility with its statutory functions NPP could not "acquiescence in" the use of the land for recreational purposes, but I do not see how that can be squared with the expressions actually used by the judge; nor, as explained below, do I see how it could help NPP's case.)

The judge's approach appears to have been influenced heavily by the decision in British Transport Commission. The issue in that case, however, was whether it was open to the justices to find that a footpath over a railway had been dedicated as a public right of way. It was argued that dedication would have been incompatible with the statutory purposes for which the railway company held the land. Viscount Simonds stated at pages 142-143 that the principle to be applied was that in Rex v Inhabitants of Leake (1833) 110 ER 863. He introduced the point in this way:

At the end of his speech (at page 146) Viscount Simonds referred to s.1(7) of the Rights of Way Act 1932, which provided: "Nothing in this section contained shall affect any incapacity of a corporation or other body or person in possession of land for public or statutory purposes to dedicate any such way where such way would be incompatible with such public or statutory purposes" (emphasis added). He said that the subsection, by preserving the existing law and recognising that incompatibility of a public way with statutory purposes was the test, confirmed the view that the principle of Leake’s case prevailed. This serves to underline that capacity to dedicate was at the heart of the decision.

Mr Laurence QC took us through the history of s.1 of the 1932 Act in order to emphasise the point that the exception in s.1(7) (now to be found in s.31(8) of the Highways Act 1980) has been preserved throughout. He contrasted this with the statutory regime applicable to town or village greens, which has at no time contained any provision relating to incompatibility with statutory functions.

If registration as a town or village green depended on dedication or grant, I doubt whether the absence of an express statutory provision equivalent to s.1(7) of the 1932 Act would be sufficient to displace the application of the principle in Leake’s case. But since registration does not depend on dedication or grant, it seems to me that the principle in Leake’s case has no application, and I agree that if Parliament had wished in these circumstances to preclude registration of land as a town or village green on grounds of incompatibility with the landowner's statutory functions it would have included express provision to that effect.

On behalf of NPP, Mr George QC accepted that the ratio of British Transport Commission relates to capacity to dedicate a public footpath and that a similar rule concerning capacity to grant applies in respect of private rights of way. But he argued that there is a wider underlying principle, not dependent on capacity to dedicate or grant, which in his submission should lead the court to read into the Commons Act 2006 an implied qualification to the effect that land is not to be registered as a town or village green where registration is foreseeably incompatible with the exercise of a public body's powers and duties.

He advanced the argument by reference first to Scottish law on public rights of way, which "does not depend upon any legal fiction [of grant or dedication], but upon fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription" (per Lord Watson in Mann v Brodie (1885) 10 App Cas 378, at page 391). That is the legal backdrop for the decision in Magistrates of Edinburgh v North British Railway Company (1904) F 620, in which the Court of Session found against the existence of a public right of way over a railway on the basis of incompatibility with the railway company's statutory functions. Lord Kinnear said this in a passage (at pages 636-637) that lay at the heart of Mr George's submission in favour of the wider principle:

Lord Keith considered this and other Scottish cases in his speech in British Transport Commission. He said (at page 164) that the law of Scotland was "certainly no less favourable to the constitution of a right of way in circumstances such as the present than the law of England". As regards Magistrates of Edinburgh, he said that if Lord Kinnear was intending to lay down as a matter of law that in no circumstances could the public acquire a right of way over railway property, such an opinion was not consistent with authority; but there were passages in Lord Kinnear's opinion that suggested he was perhaps influenced by the fact that in the circumstances of that case a public right of passage was incompatible with the conduct of the traffic on the railway, and if that was the ground of his opinion it was entirely consistent with English authority.

Another case considered by Lord Keith was Paterson v Provost etc. of St Andrews (1881) 6 App Cas 833, where it was held that the local magistrates did not have power to confer a right of way over golf links that might become inconsistent with the rights of the inhabitants in the future. As to that, Lord Keith observed (at page 166) that it was clear that the magistrates could do no positive act in breach of their duty to the inhabitants, but it did not follow that by tacit acquiescence, indifference or neglect they might not have allowed a public right of way to be established over the golf links. He knew of no authority or principle which would have prevented the public, by appropriate use of a path over the golf links from one public place to another for an interrupted period of 40 years, from establishing the existence of a public right of way The principle of presumed dedication had no place in the law of Scotland and accordingly it was not possible to build on the case of Paterson any argument favourable to British Transport Commission.

Taking Lord Keith's speech as a whole, I do not find in it an unequivocal acceptance of what was said in Magistrates of Edinburgh even as representing the state of Scottish law, let alone as reflecting a principle forming part of the law of England. It seems to me that in relation to the law of England he went no further than to accept the correctness of the reasoning of Viscount Simonds to which I have already referred.

I would add that I do not find the reasoning in Magistrates of Edinburgh at all persuasive. I do not see why, in a context where the acquisition of prescriptive rights does not depend on actual or presumed grant, the landowner's lack of capacity to make a grant should preclude the acquisition of such rights. The suggestion that a landowner who lacks the capacity to grant a right also lacks the capacity to acquiesce is very puzzling, since acquiescence is essentially a question of fact or factual inference, not of legal capacity. Concerns of this kind may have lain behind Lord Keith's observation in Paterson that the magistrates could not do a positive act in breach of duty but it did not follow that by tacit acquiescence they might not have allowed a public right of way to be established.

For those reasons I do not think that Mr George's reliance on the Scottish law on rights of way provides any basis for reading into the Commons Act 2006 the qualification for which he contended.

Mr George also referred to the Irish case of M’Evoy v The Great Northern Railway Company [1900] 2 IR 325, which concerned a claimed prescriptive right to take water from an artificial watercourse constructed by a railway company. The court took a similar approach to that of Lord Kinnear in Magistrates of Edinburgh, observing that although a presumption of grant was not necessary to found a prescriptive right, there could be no prescription "if the owner of the servient tenement be so restrained by statute, or by common law, as to be incapable of granting the easement in question" (per Palles CB at page 334). I do not think that this takes matters any further forward than the Scottish cases. Again, it does not represent the law of England and it does not provide a basis for the implied statutory qualification contended for.

One other authority that I need to consider is Western Power, which was the only case apart from British Transport Commission to which Ouseley J himself referred on the issue of statutory incompatibility. It concerned land held by a council under s.164 of the Public Health Act 1875 (which imposed a statutory trust over the land for recreational use by the public). The council decided to designate the land as a nature reserve under s.21 of the National Parks and Access to the Countryside Act 1949. The effect of such designation was inter alia to confer power to make byelaws prohibiting or restricting entry into or movement within the reserve. Designation was therefore in potential conflict with the statutory basis on which the land was held. For that reason the exercise of the power to designate was held to be unlawful (though the problem could probably have been circumvented by the council's exercise of its power under s.122 of the Local Government Act 1972 to appropriate the land for the new purpose, thereby freeing it from the existing trust). The issue was therefore very different from that which arises in the present case, and I see nothing in the decision to support the judge's conclusion on the issue of conflict with NPP's statutory functions.

For completeness, I should indicate that I do not read the judge's "other ways of putting it", in para 147 of his judgment, as representing any materially different basis for the conclusion he reached. He was concerned about the acquisition of rights "against the general public interest" but the existence of a public interest against the registration of land as a town or village green is plainly not a sufficient reason for holding it not to be registrable. Parliament has struck a public interest balance in laying down the conditions for registration. It has chosen not to make an exception in relation to land held by those with public functions that may be affected by registration. Thus it was made clear in Beresford that local authorities are not excluded from the scope of the legislation (see per Lord Walker at para 88). There is in my judgment no reason in principle why statutory undertakings such as NPP should be in any different a position.

I do not underestimate the consequences that registration of West Beach as a town or village green may have on the future discharge of NPP's statutory functions. For the reasons I have given, however, I do not consider that those consequences provide a proper ground for holding that the land is not registrable. On this issue, therefore, I find in favour of the appellants.

That makes it necessary for me to turn to the issues raised by the respondent's notice.

The first of those issues is a re-run of an argument described by the judge in these terms (at para 11 of his judgment):

The judge went on to consider that issue at some length, at paras 12-39, concluding that West Beach is not excluded from registration by reason of the fact that it is not a traditional green or grassy or because it is tidal.

The question "what is a village green?" was addressed in Oxfordshire, which concerned the definition in s.22 of the Commons Registration Act 1965. Lord Hoffmann said at para 37 that people might feel a "visceral unease" at the lack of resemblance between the land registered in Beresford, or sought to be registered in Oxfordshire, and the traditional village green whose passing was lamented by Goldsmith in The Deserted Village in 1770. He considered whether the concept could be narrowed by importing into the statutory definition some of the qualities associated with the ordinary use of the term defined – the "Auburn test", as he put it, referring to the village green described in Goldsmith's poem. He continued:

Lord Rodger (at para 115) expressed unease at the result but agreed with Lord Hoffmann's view. So did Lord Walker, stating (at para 128) that the cumulative force of the eight points set out by Lord Hoffmann appeared to him to be irresistible.

Lord Scott disagreed. For reasons given at paras 71-77, he considered that for land to be described for legal purposes as a town or village green prior to the Commons Registration Act 1965, something more was needed than the fact that the land was subject to a customary right of recreation:

Baroness Hale (at para 145) expressed considerable sympathy for the views expressed by Lord Scott but believed it better to leave the issue to be properly fought out on another day.

In this court Mr George submitted, correctly, that what was said on the subject in Oxfordshire was obiter and without the benefit of full argument from counsel (he was one of the counsel in the case and told us that the matter arose as a "sidewind"). He argued that we should therefore approach the matter de novo. He advanced submissions in support of the position taken by Lord Scott, favouring the "Auburn test" (referred to by Mr George as the "greenness test") which the majority rejected. He started with the meaning of "town or village green" prior to the Commons Registration Act 1965, citing dictionary definitions, the works of legal writers on the meaning of the expression in Victorian legislation (s.12 of the Inclosure Act 1857 and s.29 of the Commons Act 1876), and the report of the Royal Commission on Common Land 1955-1958, Cmnd 462. Such material was considered in detail in the speeches in Oxfordshire. Mr George relied on it as indicating that Parliament must have been thinking of areas of grass when defining a town or village green in the 1965 Act. He then engaged in an extensive critique of the eight reasons given by Lord Hoffmann for taking a different view.

I have not thought it necessary to set out the detail of Mr George's criticisms of Lord Hoffmann's reasoning in Oxfordshire. Although there is undoubted force in some of those criticisms, they would not be sufficient to persuade me to depart from the view of the majority in Oxfordshire even if we were considering the definition in s.22 of the Commons Registration Act 1965, which was the statute in force at the time of the Oxfordshire decision. As it is, however, we are considering the definition in a later statute, s.15 of the Commons Act 2006, and it seems to me that the arguments against reading elements of the traditional village green into the statutory definition are now much stronger than they were at the time of the Oxfordshire decision.

The Bill that led to the Commons Act 2006 was going through Parliament when the decision of the House of Lords in Oxfordshire was handed down. Although it was at a relatively late stage in the Parliamentary procedure, Mr George accepted that there would still have been an opportunity to amend it if that had been the wish of Parliament. Lord Hoffmann had that very much in mind in the seventh of the reasons he gave in para 39 of his speech: "if Parliament thinks that the definition needs to be narrowed, it will have an immediate opportunity to do so". Lord Rodger made the same point at para 115: "At present there is a Bill before Parliament dealing with some of the same subject matter. Again, it contains no measure to narrow the definition in section 22 so as to limit it to more 'traditional' village greens. But if, having taken account of your Lordships' speeches in the present appeal, Parliament wished to change the definition in this way, a suitable amendment could doubtless be introduced". So too Lord Walker stated, at para 128: "Parliament now has the opportunity to re-visit this topic again if it thinks fit".

Mr George suggested that it would have been highly unusual for Parliament to amend the law on the basis of obiter dicta. It seems to me, however, that given the considered nature of the view expressed by the majority, albeit obiter, and the point made by each of them about the legislative opportunity to amend the position if Parliament wished to do so, very real weight can be attached to the fact that the opportunity was not taken.

But the reasons for declining to read s.15 of the 2006 Act in the way contended for by Mr George go further than that. The scope for argument that elements of the traditional village green should be read into s.22 of the 1965 Act was enhanced by the very fact that the language in issue constituted a definition of "town or village green" ("'town or village green' means land ..."). Under s.15 of the 2006 Act, by contrast, the definitional link has been removed. It is true that the heading to s.15 is "Registration of greens" and that subsection (1) refers to registration "as a town or village green". Registration depends, however, simply upon meeting statutory conditions that are expressed without reference to a town or village green. Thus, subsection (1) provides that "[a]ny person may apply to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies"; and, as already indicated, the relevant subsection in this case is subsection (4), which is expressed to apply "where ... a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years". I do not see what sensible scope there can be for reading into that condition the kind of qualification for which Mr George contends.

I therefore consider that Ouseley J was right to reject NPP's case on this issue.

The next of Mr George's arguments arises out of the tidal nature of the area of land sought to be registered. The judge summarised the argument in this way:

The judge accepted that the usual seaward boundary of the area actually used for lawful sports and pastimes had varied on a daily or seasonal basis over the twenty years and would likewise vary in future, and indeed with future accretion or diluvion could vary more markedly. But he did not accept that this showed that a tidal beach was incapable in law of registration as a town or village green. Of course, the recreational use did not stop at the notional line on the ground represented by the boundary to the application site: the lawful recreational use extended to wherever the receding or incoming tide had reached. A fixed line on a map was required for the application, and the inspector's judgment that mean low water was an acceptable line was a rational reflection of the usage of the land. Fixing that line on a map could not lead to the registration of any land over which lawful recreational use did not occur. There might be areas beyond it which would have been so used but were not included within the registered area, but that possibility could not be a sound legal objection to the registrability of the rest. If the low water mark receded through accretion, the further land exposed would not form part of the registered green; if the beach eroded, the lawful recreational use of what hitherto had been so used would become impossible and part of the registration might be redundant and of historic interest only. That, however, did not tell against the lawfulness of registration now. The judge concluded that the matters advanced by Mr George under this head did not provide a reason for refusing to register the land.

Mr George advanced substantially the same case before us as he had advanced before the judge, contending that the use proved does not relate to the area claimed: for land to be registered, what is required is that the whole of the land subject to the application has been used for lawful sports and pastimes throughout the relevant period; whereas what one sees in this case (save for the very short time when the tide is fully out) is the use of parts of the land throughout the period. In his submission, the point is not met by the fact that the area defined by the application is "land" within the statutory definition and that the area defined does have a fixed boundary. Although his submissions were expressed by reference to the particular use proved in this case, he acknowledged that the effect of the submissions, if accepted, would be that no land seaward of high water mark can be registered as a green.

For my part, I see no substance in the submissions. The judge was in my view correct to reject them for the reasons he gave. The issue does not merit fuller analysis.

The next of Mr George's submissions was that use by the public of the foreshore is subject to the rebuttable presumption that such use is by permission of the Crown or its successors in title. Ouseley J rejected that argument, stating at paras 119-122 that there is no reason to hold that rights to use land for sports and pastimes cannot be asserted against the Crown as landowner, including rights over the foreshore; that there is no authority to support a proposition that what would amount to mere toleration by any other landowner amounts to a permission where the Crown is landowner; and that if rights to use land for sport and pastimes can be asserted against the Crown, there is nothing in the legislation relating to town or village greens to suggest a special regime.

In renewing the argument before us Mr George placed at its centre, as he did before the judge, the decision in Alfred F Beckett Ltd v Lyons [1967] 1 Ch 469, but the argument and the counters to it went deep into the history of cases involving use of the foreshore.

The question put for the opinion of the Court of King's Bench in Blundell v Catterall (1821) 5 B & Ald 268 was "whether there is a common-law right for all the King's subjects to bathe in the sea, and to pass over the sea-shore for that purpose, on foot and with horses and carriages", though the real question was said to be whether there was a right to do so where the soil of the sea-shore and an exclusive right of fishing were private property belonging to a subject and had been so from time immemorial (see per Holroyd J at page 288). The court acknowledged the widespread practice of bathing in the sea and passing over the sea-shore for the purpose but held by a majority that it was not the subject of any general common law right. It did so, however, in terms that did not suggest the existence of any general permission by the Crown to engage in the practice. The judgments clearly contemplated that rights could be acquired by usage and custom, though such was not alleged or supported by the evidence in the case. The practice was explained by Holroyd J on the basis that where the soil remains in the Crown and no mischief of injury is likely to arise, "it is not to be supposed that an unnecessary and injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriae" (page 300). Abbott CJ put it this way (at pages 314-315):

In Brinckman v Matley [1904] 2 Ch 313 it was again contended, in relation to an area of foreshore granted to the owner's predecessors in title by the Crown, that "all the liege subjects of His Majesty the King of right have at all times had and enjoyed ... the right and liberty of bathing in the sea [at the relevant location] at all seasonable and convenient times for their health and recreation, and for that purpose of going and returning, passing and repassing, into, through, over, and along the said foreshore on foot ..." (page 314). The Court of Appeal took the view that the question had been determined once and for all by the judgments of the majority in Blundell v Catterall and should not be reopened. In rejecting the existence of the right claimed, the court again said nothing to support the suggestion that this was because use of the foreshore was by permission of the Crown. Vaughan Williams LJ, giving the leading judgment, said that "it is sufficient to say that the Crown holds the foreshore upon the terms that it must recognise the jus publicum, whatever it may be, over the foreshore, and do nothing inconsistent with that jus" (page 325).

The defendant in Lord Fitzhardinge v Purcell [1908] 2 Ch 139 claimed the right to go upon the foreshore of a tidal and navigable river to shoot and carry away wild duck. In so far as the defendant's case was based on prescription, it was rejected for inadequacy of evidence; the case based on custom was rejected because the right claimed was a profit à prendre and no right to a profit could be claimed by custom; and there was held to be insufficient evidence to support the creation of a trust or condition in favour of the inhabitants of the relevant manors. The separate argument that there existed a common law right for all the King's subjects to shoot wild fowl at their will and pleasure on the foreshore and in the bed of tidal navigable rivers was rejected on the authority of Blundell v Catterall and Brinckman v Matley. Referring to Holroyd J's observation in Blundell v Catterall that it is not to be supposed that an unnecessary and injurious restraint upon the King's subjects would be enforced by the King, the parens patriae, Parker J added (at pages 168-169):

The defendants in Alfred F Beckett Ltd v Lyons (cited above) claimed a right to enter on an area of foreshore in the exclusive possession of the plaintiffs and to collect and carry away therefrom sea-washed coal. It appears that the case was argued on behalf of the defendants on the basis that the usage went back to time immemorial and could be presumed to have its origin in a prescriptive right or implied grant; whereas the plaintiffs contended for the alternative explanation that "the privilege of walking on the beach and taking things from it is explicable as an implied permanent licence, a practice tolerated by the Crown as owner of the foreshore, because it was on so small a scale that it did no harm" (page 455F). One sees in that summary of the plaintiffs' argument a potential confusion between permission and toleration, and the judgments do not draw as clear a distinction as one would wish between the two concepts. Harman LJ, for example, said (at page 469A-C):

To like effect, Russell LJ rejected the argument that the practice must have had a legal origin, holding that "the only reasonable conclusion is mere tolerance of the unimportant" (page 476A). Winn LJ said that the conduct in question "appears to me to be consistent with and therefore to establish no more than either a traditional understanding that all who lived close to the shore might resort there and take coal from it as of right, that is to say, without being liable to be lawfully prevented by anyone from so doing; or with a similar belief that a practice which had been long permitted would continue to be permitted, and that it was safe to assume that the owner of the foreshore, whoever that might be, would not suddenly withdraw permission without prior notification" (pages 485G-486A).

The reasoning in Alfred F Beckett Ltd v Lyons was subject to criticism in Mills v Silver [1991] Ch 271, in so far as the court had suggested that tolerance could be an answer to a prescriptive claim. Dillon LJ said this (at pages 279G-280A):

Dillon LJ cited Sturges v Bridgman (1879) 11 Ch D 852 as being consistent with principle, and stressed that "acquiescence in or tolerance of the user by the servient owner cannot prevent the user being user as of right for purposes of prescription" (page 281H). He questioned the approach of Harman LJ in Alfred F Beckett Ltd v Lyons and said that in his view the decision in that case came down to this, "that it is well known that public rights in law over the foreshore are very limited and that everything else done on the foreshore is by tolerance or licence of the Crown; therefore no-one can have supposed that he was exercising a public right when picking up coal or otherwise beachcombing on the foreshore" (page 284B). He said that in that sense tolerance was a sufficient explanation. In relation to a later case which had relied on Alfred F Beckett Ltd v Lyons, he stated that "the casual nature of the user is the factor that indicates that it was not as of right; toleration and the assumption of good nature on the part of the owner of the verge do not per se bring about that the user was not as of right" (page 284E).

Parker LJ and Stocker LJ both agreed with that judgment. Stocker LJ observed (at page 293C):

Both Alfred F Beckett Ltd v Lyons and Mills v Silver must be viewed in the light cast by observations made about them in the more recent House of Lords cases on town or village greens. In Sunningwell, at pages 358-359, Lord Hoffmann said:

In Beresford, Lord Walker stated that in the area of the law concerned with town or village greens "it would be quite wrong ... to treat a landowner's silent passive acquiescence in persons using his land as having the same effect as permission communicated ... to those persons" (para 79). He said that this point was put very clearly and very compellingly by Dillon LJ in Mills v Silver, in the passage at pages 279-280 which I have quoted above. He also agreed with the observation I have quoted from the judgment of Stocker LJ, which he said was making the same point "that in this context consent is not a synonym for acquiescence, but almost its antithesis" (para 81). He noted that Mills v Silver had been referred to with approval by Lord Hoffmann in Sunningwell and said that he had found it, after Sunningwell, the most helpful guide to the relevant principles.

In my judgment, those authorities do not make good Mr George's contention that use of the foreshore by the public is, or is presumed to be, by permission of the Crown or its successors in title. They do establish that there is no general common law right for the public to pass over the foreshore for the purpose of bathing, shooting wild birds or, as is inherent in their reasoning, other recreational activities. The reasons given for rejecting any such general right do not, however, show that use of the foreshore by the public for such purposes can never be use as of right. Alfred F Beckett Ltd v Lyons is the nearest one gets to a finding that use of the foreshore by the public is by implied permission, but there is no clear finding to that effect. The main strand in the court's reasoning in that case was that tolerance was a sufficient explanation of the practice (i.e. sufficient to negative a legal origin in the form of a grant), and it is far from clear that tolerance was being equated for that purpose with permission. Moreover the earlier cases rejecting the existence of a right, including the seminal authority of Blundell v Catterall, did so essentially on the basis that the Crown (or private landowner) had refrained from seeking to restrain harmless activity, which is an explanation more consistent with tolerance in the sense of acquiescence than with implied permission.

Where the tolerated use is of a casual or trivial nature, it may not amount to use as of right (and that may be what the court had in mind in the earlier cases). In any event, however, toleration is plainly consistent with use as of right, as was made clear in Mills v Silver and by Lord Hoffmann in Sunningwell and by Lord Walker in Beresford; and it is use as of right, rather than any additional question of grant or dedication, upon which registration depends under the legislation relation to town or village greens (see the previous discussion relating to the issue of incompatibility with NPP's statutory functions).

Thus, neither the absence of any general common law right in respect of use of the foreshore for recreational purposes nor the history of tolerance of such use (as vouchsafed in the cases) precludes a finding that recreational use of a particular beach is use as of right, if such a finding is otherwise justified by the evidence. It follows that in my judgment Ouseley J was right to reject NPP's case on this issue.

This issue, like that relating to the absence of a fixed boundary to the land used, stems from the evidence relating to the effect of the tides on usage of the land. The ground was originally expressed in terms of Wednesbury irrationality and the judge dealt with it in that way (though at para 73 he suggested that the question whether an area of land meets the statutory conditions for registration is a matter of law for decision by the court rather than being left to the reasonable judgment of the decision-maker). Mr George preferred to re-express the point before us as an error in the inspector's interpretation of the evidence which robbed her recommendation (and therefore the decision of the county council) of its logic: he submitted that on the evidence as found by the inspector she could not logically have reached the conclusion that the whole of the land she recommended for registration had been continuously used for lawful sports and pastimes during the relevant 20 year period. The point still looks to me like one of Wednesbury irrationality but I will concentrate on the substance of the argument rather than troubling about precise legal categorisation.

It is important to note that in considering the use of the land over the relevant period the inspector excluded from consideration water-based activities such as swimming and fishing, because they were forbidden by the byelaws. The only "lawful sports and pastimes" taken into account were therefore land-based activities such as sunbathing, beach games, picknicking, dog walking and kite flying.

The inspector summarised the evidence concerning the effect of the tides at paras 3334 of her report:

She found at para 6.35 that there had been considerable and regular use of the land for land-based recreational activities during the relevant period; and at para 6.38 that although the use was materially less during the winter months, the land remained in use throughout the year. At para 6.39 she turned to consider the effect of the evidence concerning the tides. Having accepted the evidence of Mr Marks as to the periods for which the beach was wholly or partly covered, she continued:

Mr George submitted that in circumstances where the land was rarely completely uncovered by water, the majority of it was unavailable for use for most of the day, and some of it was available for use for only a few minutes a day, it was illogical to treat the whole of the land as being in continuous use and to treat the use as being sufficient to convey to a landowner that rights were being asserted over the land. The inspector reached an illogical conclusion as to the whole from use of only part.

The judge dealt with that line of argument, or at least with the way in which the argument was put to him, at paras 67-72 of his judgment. He said that it was not a prerequisite of registration of land that lawful recreational use be physically possible over all of it; and he cited the Oxfordshire case (where only some 25% of the surface area of the land in question was reasonably accessible to a hardy walker) as an illustration of that. He did not see a relevant distinction in law or rationality between the registration of an area most of which was physically unused and was unusable for recreation, but all of which was sensibly regarded as constituting a single identifiable area, and the registration of an area all of which was physically used and usable for recreation but only for variable, and in part exceedingly short, parts of the day. The limited extent of physical lawful use was a constant in one and a variable in the other, but that difference did not found a legal distinction to his mind. It was not of the essence of a registrable town or village green that the qualifying recreational use be the sole or dominant use, or that it had any other characteristic beyond that it had lawfully occurred as of right for the requisite period. The effect of the tides was not entirely akin to the possible analogous effect of nightfall on an inland green, because the effect of the tides, coupled with the effect of the byelaws, made lawful recreational use of the land covered in water impossible, whereas darkness might only make lawful recreational use awkward or dangerous; but he did not see that as preventing a rational conclusion that when, where and to the extent that lawful use was possible there was a sufficient degree of it to satisfy the criterion that use be as of right and so to permit registration. He considered the decision on this issue to be both rational and adequately reasoned.

I agree with the judge's reasoning and conclusion on the point. He expressed it largely in terms of rationality because that was the way the argument was put to him, but for the same essential reasons I do not accept that there was any error in the inspector's interpretation of the evidence or any illogicality in the recommendation she made on the basis of that evidence, or that any error of law is established by Mr George's arguments on this issue.

The issue under this heading is whether the effect of the byelaws made in 1931 by the then harbour authority (see para 10 above) was to make the public's use of West Beach "precario" and therefore not as of right. Ouseley J considered the issue at paras 74-111 of his judgment, concluding that the byelaws represented no bar to registration. There may have been some differences in the way Mr George put the case to us, but the core of the argument was the same.

The byelaws were made under s.83 of the Harbours, Docks and Piers Clauses Act 1847. Provisions relating to their publication and display were contained in ss.88 and 89 of the Act:

Section 89 was repealed by the Statute Law (Repeals) Act 1993. Mr Laurence QC submitted, however, that the effect of the section was that a byelaw, although duly published and put up when made, ceased to be binding in the event of a subsequent failure to maintain its display, and that the repeal of the section by the 1993 Act did not alter that position as regards byelaws published prior to the repeal. He said that if that argument was correct, then on the inspector's finding that the byelaws were not displayed during the relevant 20 year period (see below) it was destructive of all Mr George's submissions founded on the byelaws. I do not accept the argument: in my view s.89 related to the initial publication and putting up of the byelaws, not to subsequent renewals of the boards on which they were displayed; and since there is nothing to rebut the presumption that they were duly published and displayed when made, there is no reason to doubt their validity or binding effect.

Mr George submitted that the mere fact of exercise of the byelaw-making power was sufficient to constitute regulation of the port and to bring home to anyone who chose to find out that at any stage a byelaw could be made preventing access to the beach if that were considered appropriate for port purposes; which was sufficient to make the use of the beach self-evidently precarious. I find that submission wholly unpersuasive.

Mr George's alternative, and more cogent, submission was based on the wording and effect of the byelaws themselves. The principal byelaws for the purposes of that argument are these:

Mr George submitted that those byelaws not only set out what the public could not do but also gave the public an implied revocable permission to go into the harbour, to play sports or games within the harbour provided that they did not obstruct or impede the use of the harbour, and to bring dogs within the harbour provided that they were kept under proper and sufficient control. As a matter of construction of the byelaws, I agree with that submission. The question that then arises is whether, as Mr George submitted, the effect of byelaws granting such implied permission was to render recreational use of the beach precarious and therefore not as of right.

In Beresford, stress was laid on the need for overt or positive acts by the landowner in order to sustain a finding of implied permission sufficient to displace use as of right. For example, Lord Bingham said that "[a] landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission" (para 5); Lord Rodger, referring to precarium in Roman law, stated that "however informal, the arrangement does involve a positive act of granting the use of the property, as opposed to mere acquiescence in its use" (para 57); and Lord Walker considered that the matters relied on bythe landowner "cannot be regarded as overt acts communicating permission to enter" (para 85).

It was against the background of such statements that the inspector considered the position on the ground in this case. She found that there were no byelaw signs in place during the relevant 20 year period that would have indicated to users of the land that such use was regulated by byelaws; that there was no evidence of active enforcement of the byelaws during that period; and that there was no other suggestion of any other overt act on the part of the landowner during that period to demonstrate that he was granting an implied permission for local inhabitants to use the land (paras 6.68-6.70 of her report). She went on to find that the mere existence of the byelaws, without any indication of their being communicated to users at any time during the relevant 20 year period, was insufficient to result in the use being carried on with implied permission for the purposes of the legislation.

Ouseley J said at para 101 of his judgment that the crucial question was whether the inspector was right that some form of communication of the byelaws was necessary; and to his mind that was effectively answered by Beresford, which drew a clear distinction between passive acquiescence, even encouragement or facilitation, and permission overtly communicated. (The judge also referred in this connection to Lewis but I do not think it necessary to deal with that aspect of his reasoning.)

Mr George submitted that the inspector and the judge were in error. He pointed to an inconsistency in the inspector's approach, in that notwithstanding the lack of communication she attributed legal effect to the byelaws in so far as they prohibited relevant activities (swimming and fishing, which she left out of account on the basis that they were therefore not "lawful" sports or pastimes) yet declined to give legal effect to them in so far as they permitted relevant activities. He submitted that there is no requirement to communicate a statutory provision before it can have legal effect; that R v Secretary of State for the Environment, ex p. Billson [1999] QB 374 stands as authority for the proposition that a statutory permission does not need to be communicated; and that the references in Beresford to communication related to the different situation where an owner's conduct is said to constitute implied permission.

If the byelaws had granted to the public a statutory right or entitlement to enter the harbour and engage in recreational activities to the extent indicated by them, then I accept that they would have been effective to prevent registration of the beach even in the absence of communication during the relevant period. But that is because in those circumstances use of the beach would have been use by right, as distinct from use as of right. That is materially different from use precario, i.e. by the permission of the landowner.

R v Secretary of State for the Environment, ex p. Billson involved an unusual combination of statutory provision and act of the landowner. Section 193(1) of the Law of Property Act 1925 conferred on members of the public "rights of access for air and exercise" over common land to which the section applied. By s.193(2), the lord of the manor or other person entitled to the soil of any land subject to rights of common "may by deed, revocable or irrevocable, declare that this section shall apply to the land, and upon such deed being deposited with the minister the land shall, so long as the deed remains operative, be land to which this section applies". In the case in question an inspector had relied on the existence of an expressly revocable deed as a reason for declining to confirm a modification order showing certain public rights of way over common land. Sullivan J upheld that decision. At pages 393-394 he said this:

In the light of that conclusion it was unnecessary to consider whether, in terms of the proviso to s.31(1) of the Highways Act 1980, there was sufficient evidence that there was no intention during the relevant 20 year period to dedicate rights of way. Sullivan J nevertheless went on to consider that issue, holding that the deed was sufficient evidence for the purpose. As it seems to me, it was on that point, which is irrelevant in the present context, that his decision was disapproved by the House of Lords in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2008] 1 AC 221.

As to Sullivan J's primary finding that use of the tracks was not as of right, I would accept Mr Laurence's submission that the decision was correct but for the wrong reason. The effect of the deed was to confer on the public a statutory right of access for so long as the deed remained operative: the use was by right and was not simply a matter of licence, and if it was by right the fact that the existence of the deed was not known did not matter. But in so far as the deed itself was relied on as conferring a licence, I do not think that the decision can live with the reasoning in Beresford as to the need for overt acts communicating permission for the use in question.

The distinction between use pursuant to a statutory right and use as of right was noted in Beresford, though the issue was held not to arise on the facts of the case and was left open. Lord Bingham put the matter as follows:

Lord Rodger (at para 62) agreed that none of the statutes conferred any right on residents to use the land in question. Lord Walker dealt with the matter somewhat more fully. He said that the local authority held the land for public law purposes and was in a different position from a private landowner and that "the notion of an implied statutory licence has its attractions" (para 86). He continued:

The question left open in Beresford had to be confronted by the Court of Appeal in R (Barkas) v North Yorkshire County Council [2012] EWCA Civ 1373, which concerned an application to register as a town or village green land which was laid out and maintained by the local authority as a recreation ground pursuant to what is now s.12(1) of the Housing Act 1985. The arguments in the case were all directed to whether use of such land was by right rather than as of right; the issue was not presented or considered in terms of implied licence or permission. The conclusion, at para 44 of the judgment of Sullivan LJ (with whom the other members of the court agreed), was that:

In my judgment, the byelaws in issue in the present case are materially different in their effect from the statute under consideration in R v Secretary of State for the Environment, ex p. Billson and from the situation left open in Beresford but expressly addressed in R (Barkas) v North Yorkshire County Council. Whilst I have accepted that on their proper construction the byelaws impliedly permitted the public to access the harbour and engage in various sports and activities, I do not accept that they had the effect of conferring any right on the public to do those things. They went no further than to give an implied revocable permission by the harbour authority, as landowner, for such access and activities. If, for example, the harbour authority had fenced off some part of the harbour, thereby preventing access to it, I do not think that a claim could have been maintained against the authority by a member of the public on the basis that the fencing off was in breach of rights conferred on him by the byelaws.

If that is the true effect of the byelaws, I take the view that the situation is governed by the principles laid down in Beresford as to the need for some overt act communicating permission. The mere making and publication of the byelaws back in 1931 was not sufficient to meet that requirement. On the inspector's findings of fact, there was nothing by way of display or enforcement of the byelaws during the relevant 20 year period to indicate to the public that use of the beach was subject to the permission of the landowner. The inspector was therefore right to find that the byelaws did not have the consequence that such use was precarious and not use as of right. I see no inconsistency between that finding and her finding that acts done in contravention of the byelaws were unlawful: enforcement of the law is an altogether different issue and does not depend on the Beresford principles relating to implied permission.

I therefore agree with the conclusion reached by Ouseley J on this issue.

NPP submitted to the inspector that there was no public right of way to West Beach and that use of land to which the public had no right of access was necessarily precarious and not as of right. The town council argued that a public right of way might have been created by implied dedication at common law or by virtue of the presumption in s.31 of the Highways Act 1980 which would enable a successful application to be made to modify the definitive map. The inspector, however, felt unable to reach a concluded view on the prospects of success of such an application. She went on to say:

The town council subsequently made an application to modify the definitive map so as to show a right of way over the full width of the promenade and the steps to the beach, which would establish a public right of access to West Beach. That application remained unresolved by the time of the hearing before Ouseley J and, so far as I am aware, is still unresolved.

Ouseley J accepted that NPP's arguments on the issue of right of access did not involve seeking to erect an additional statutory criterion as the inspector had suggested. He then summarised the arguments and his views on them as follows:

The judge gave further reasons along the same lines, noting also that if it turned out that there was a right of way over the promenade to the beach there would have been no reason to refuse registration, and if it turned out that there was no such right of way the recreational rights would be unusable unless and until such a right was created. He saw nothing unlawful in the registration of the land as a village green on that account.

Mr Petchey, who presented this part of NPP's case before us, took issue with the judge's conclusion, submitting bluntly that the county council, as registration authority, had to determine whether there was a public right of access to the land in order properly to determine the quality of use of the land. If there was no right of access, then the precariousness of the access rendered the use of the land itself precarious. It would be absurd if land could be registered in circumstances where local people had no means of exercising rights of recreation over it. The question whether there was a public right of way could not therefore be left on one side: the registration authority had to form a view on it as best it could, or at least defer a decision on registration pending determination of the application to modify the definitive map.

This is another issue in relation to which I see no substance in NPP's arguments. As the judge said, the existence or otherwise of a public right of access to the beach might be relevant to, but could not be determinative of, the question whether there had been use of the beach as of right. As it was, there was ample evidence to justify a finding that there had been use of the beach as of right, irrespective of whether a right of access to it was established or not. In those circumstances it was open to the registration authority to proceed to a decision without attempting to reach its own view as to the existence or otherwise of a right of way (a matter clearly better left to the map modification process) and without waiting for a determination of the application to modify the definitive map. The uncertainty over a public right of access was not a legal bar to registration and was not a good reason for deferring a decision on registration. I agree with the judge's rejection of NPP's challenge on this issue.

For the reasons given, I would allow the appeal.

In common with my Lords I agree that the ground upon which NPP succeeded before Ouseley J (registration as a town or village green being incompatible with NPP's statutory powers and duties) is not sustainable for the reasons given by Richards LJ at paragraphs 10 to 29.

I also agree that NPP have failed, as they did before Ouseley J, to make good their case with respect to grounds (1), (2), (3) and (6) as listed by Richards LJ in paragraph 8.

My Lords have come to different conclusions with respect to ground (4) (whether the terms of the byelaws establish precarious use, rather than use of the beach as of right) and ground (5) (whether the character of a foreshore, of itself, establishes a rebuttable presumption that use is by permission of the Crown or its successors). Richards LJ has concluded that NPP has not succeeded in establishing either of these two grounds and that the appeal by the two local authorities must therefore succeed. Lewison LJ has formed the contrary opinion to the effect that both grounds, probably in isolation, but certainly in combination, are established with the consequence that public use of this stretch of foreshore has been by permission and not as of right; he therefore holds that the appeal should be dismissed, albeit for reasons that differ from those which prevailed at first instance.

Despite having great respect for Lewison LJ's analysis, and despite understanding, and not disagreeing with, the list of reasons which my Lord lists at paragraph 128 for holding that the foreshore is, to some extent, a special case, I agree with the judgment of Richards LJ on this point and his conclusion at paragraphs 59 to 61 that the points made by Mr George in this regard do not go so far as to establish that use of the foreshore by the public is, or is presumed to be, by permission of the Crown or its successors.

In relation to ground (4) the difference between my Lords would seem to turn upon whether or not the making of the byelaws (which it is agreed contain an implied revocable permission to use the foreshore) is sufficient, of itself, to establish the necessary degree of communication to members of the public so as to render recreational use of the beach precarious and therefore not as of right. Richards LJ at paragraph 79 draws a clear distinction between a statutory right created by a byelaw and use by the implied permission of the landowner. Richards LJ refers to the reasoning in Beresford establishing a need for overt acts communicating permission for the use in question (paragraph 82) and, at paragraph 87, concludes that the mere making and publication of the byelaws in 1931 was not sufficient to meet the need that Beresford identifies. Richards LJ therefore supports the inspector's findings on this point and holds that there is nothing inconsistent with that finding and the finding that the byelaws, notwithstanding a lack of contemporary publication, do bite in terms of making acts which are in contravention of their terms unlawful.

Lewison LJ takes a contrary view on the basis that the byelaws are local law. Permission to use the beach is to be implied by the terms of byelaws 70 and 71 (paragraph 136) in accordance with Beresford and the act of making the byelaws is a 'positive act' or 'overt conduct' by the landowner sufficient to satisfy the test identified by the House of Lords in Beresford (paragraph 137). Lewison LJ concludes that if an act of communication is necessary, then such need was satisfied once and for all when the byelaws were originally published at the time that they were made. He holds that, in the case of a validly made local law, no periodic communication to the public is needed for that law to remain effective (paragraph 138).

The difference between the position taken by each of my lords could be said to be narrow, albeit that the outcome of this appeal turns upon it. For my part, and with great respect to the reasoning offered by Lewison LJ, I agree with and adopt the approach taken by Richards LJ. The 1931 byelaws are local law and they do have full legal effect, without the need for continuing or contemporary communication, in so far as they proscribe activities on the beach and within the harbour. The context in which the byelaws may be relied upon as establishing valid and enforceable local law is materially different from the context in which the same byelaws are to be relied upon as the source of an implied revocable permission sufficient to establish a precarious use of the beach by members of the public. In the latter context I agree with Richards LJ that some positive or overt act of communication during the relevant 20 period is necessary and, on the inspector's findings, no such communication took place.

In common with Richards LJ and Ouseley J, I therefore conclude that the byelaws do not establish that use during the 20 year period was precarious. It follows from the short reasons that I have given, that I am also at one with the remainder of the judgment of Richards LJ. In the circumstances I would allow the appeal.

It is perfectly true that the way that the town and village green legislation has been interpreted has allowed the registration of parcels of land that are far removed from the Platonic ideal of a village green. It is also, in my respectful opinion, true to say that in Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25, [2006] 2 AC 674 Lord Hoffmann may well have understated the consensus among learned Victorian and Edwardian jurists of the meaning of the phrase "village green". Mr George QC was able to point to a number:

From this Mr George argued that the definition of "town or village green" in the Commons Registration Act 1965 ought to be confined to small areas predominantly grassed in or in reasonable proximity to a town or village. Had we been considering the definition in the Commons Registration Act 1965 there would have been considerable force in Mr George's submission, despite the obiter views of the majority in the Oxfordshire case. But we are not. We are considering section 15 of the Commons Act 2006. In my judgment Mr George's argument starts in the wrong place. Unless that Act is unclear its legislative history is of very little weight. There is no doubt in my mind that the scheme of registration of land as town and village greens was changed by the 2006 Act. For one thing, what have traditionally been called class (a) and class (b) greens have been removed from the ambit of registration. For another, the circumstances in which land may be registered as a town or village green has been widened. In addition the 2006 Act was still passing through Parliament when the Oxfordshire case was decided. Lords Hoffmann, Rodger and Walker pointed out in terms that if Parliament did not approve of the interpretation that they had put on the original definition there was still time to change it. No change was made. Lastly, the 2006 Act does not define "town or village green". It says that land may be "registered as a town or village green"; but that is not a definition. The only conditions for registration are that section 15 (2) (3) or (4) applies. We cannot write in additional conditions when Parliament has declined to do so. In my judgment there is no escape from the conclusion that if land satisfies the conditions laid down in section 15 it may be registered as a town or village green however far from the Platonic ideal of a village green it is.

Our inability to write in additional conditions that must be fulfilled before registration is also the key to the appeal against the judge's decision. He wrote in the additional condition that it had to be within the power of the port authority to grant the right that the inhabitants claimed. But I accept the submission of both Mr Sauvain QC and Mr Laurence QC that satisfaction of the conditions in sections 15 (2) (3) or (4) is not dependent on capacity to make a grant. It is dependent only on the question whether the use that has been proved was use as of right. The judge relied in particular on highway cases. But Mr Laurence convincingly demonstrated that in such cases, at least at common law, it was necessary to prove both use as of right and an intention to dedicate. Incapacity to make a grant was relevant to the second condition: not the first. The statutory (rebuttable) presumption in favour of an intention to dedicate preserves the relevance of incapacity. In my judgment the appellants' point is well-founded. I do not consider that we can uphold the ground on which the judge quashed the registration.

Accordingly in my judgment the outcome of this appeal depends on whether the use that the inspector found to have been proven was use as of right. On most of the arguments that Mr George raised by way of Respondent's Notice I agree with the reasoning and conclusions of Richards LJ. However, on two issues, namely the foreshore and the effect of the byelaws, I have the misfortune to take a different view.

The question in Blundell v Catterall (1821) 5 B & Ald 268 was whether the general public had a right to bathe in the sea and to have access to the foreshore with bathing machines for that purpose. The claim was that:

A majority of the Court of King's Bench held that there was no such right. Holroyd J gave the leading judgment. He began by saying that his judgment would not "affect any right that has been or can be gained by prescription or custom, either by individuals or by either the permanent or temporary inhabitants of any vill, parish, or district". Holroyd J recognised that the public had a right of passage over the sea itself, and also a prima facie right to fish. However he went on to say that there was no right at common law to bathe from the foreshore. But he (and the other judges) recognised that in practice people resorted to the seashore for recreational purposes. How was that to be explained? Holroyd J said:

Abbott CJ said:

In Llandudno Urban District Council v Woods [1899] 2 Ch 705 the Council were lessees of the foreshore. The Rev John Woods held religious meetings and preached sermons on the foreshore, having already been banned from doing so on the promenade. The Council now sought an injunction to stop him. Cozens-Hardy J made a declaration that Mr Woods had no right to preach on the foreshore; but refused to grant an injunction. He said:

But he added:

The cases thus far all reject the existence of a right; but in my judgment none are inconsistent with the inference of a permission. Behrens v Richards [1905] 2 Ch 614 was a similar case. This time local fishermen trampled down hyacinths and broke a fence in order to get to the seashore in a picturesque part of Cornwall by a path that had been recently blocked. Buckley J said:

He added:

Clearly the use proved in that case was explained by the inference of revocable permission.

In Brinckman v Matley [1904] 2 Ch 313 the lord of the manor of Minster sued the headmaster of a boys' school in Poplar. He had taken a party of 200 boys to a summer camp on land within the manor which belonged to the Press baron Sir Alfred Harmsworth. The headmaster and the boys bathed in the sea; and the lord of the manor claimed an injunction to stop them. Defences based on custom and prescription were advanced but later abandoned. So the issue was, once again, the question whether there was a public right to bathe in the sea. The Court of Appeal (which included Cozens-Hardy LJ) held that that question had been settled by Blundell v Catterall; and upheld the grant of the injunction. Vaughan Williams LJ said:

Again this case rejects the notion of a right; but it is not inconsistent with the existence of an implied revocable permission.

In Alfred F Beckett Ltd v Lyons [1967] Ch 449 the issue was the existence of a customary right to gather coal on the seashore. The seashore in question was part of the County Palatine of Durham, of which the plaintiff was in possession. Mr Settle QC made it clear that part of his argument on their behalf was that activities on the foreshore were referable to an implied licence from the Crown:

I agree with Richards LJ at [52] that the first of the quoted extracts from the argument might suggest potential confusion between toleration and permission. However, I think that the remaining quotations make it clear that Mr Settle QC was using "toleration" as synonymous with "permission" (as we were told is the Scottish legal usage). As I read the judgments of the Court of Appeal, in essence they accepted Mr Settle's argument. Harman LJ said:

In my judgment it is clear that in this passage Harman LJ is using the words "toleration" in the sense of permission, as he makes clear in the latter part of the quoted passage when he says that these acts are done "by licence of the Crown". Later in his judgment, having referred to authority he said:

It seems to me to be an unlikely use of language to describe a tolerated trespass as a "privilege"; whereas that would be an apt description of a permissive right.

Russell LJ said:

The use by both Harman and Russell LJJ of "toleration" and "tolerance" has caused some disquiet. In Mills v Silver [1991] Ch 271 Dillon LJ said:

As I read this passage what Dillon LJ was saying was that tolerance could mean "licence" and in that sense tolerance was a sufficient explanation. In the same case Stocker LJ said:

He, therefore, was prepared to equate the usage of the word "tolerance" with (among other things) use "in respect of which some form of consent for the user was established so that acquiescence did not arise". That is the sense in which in my judgment it was used in Alfred F Beckett Ltd v Lyons.

Mr Laurence QC submitted that this was not the right analysis of Alfred F Beckett Ltd v Lyons. He said that what was ultimately in issue in that case was whether a grant should be inferred. That required both use as of right and also an intention to make a grant. By analogy with the common law of highways, it was perfectly possible to prove long use as of right, but fail to prove the necessary intention to dedicate. Folkestone Corporation v Brockman [1914] AC 338 was a well-known example. This was the explanation of Alfred F Beckett Ltd v Lyons proposed by Lord Hoffmann in R v Oxford County Council, ex p Sunningwell Parish Council [2000] 1 AC 335:

In my respectful opinion that is an over-simplified explanation of that case. The judgments in the Court of Appeal did not discuss the inference of an actual grant. They were principally concerned with whether the use was use as of right. Moreover in R (oao Beresford) v Sunderland District Council [2003] UKHL 60 [2004] 1 AC 889 Lord Walker said that after Sunningwell he found Mills v Silver "the most helpful guide to the relevant principles." This is certainly not disapproving of the Dillon LJ's explanation of the meaning of "tolerance" as used in Alfred F Beckett Ltd v Lyons. It seems to me that having regard to the way that the case was argued Alfred F Beckett Ltd v Lyons can equally well be regarded as a case of implied licence.

In my judgment the foreshore is, to some extent, a special case. There are, I think, a number of reasons for this:

Even if this is not, on its own, an independent reason for concluding that the use of the foreshore in this case is precario, it does in my judgment provide the context in which the bye-laws are to be interpreted.

The bye-laws were made under powers contained in the Harbours Docks and Piers Clauses Act 1847. Section 88 contained the power. The power was subject to a proviso that bye-laws should not be repugnant to the laws of the United Kingdom. Mr Sauvain QC argued that a bye-law which had the effect of preventing use "as of right" was repugnant to those laws, because it effectively disapplied the Commons Act 2006. I reject that argument, which is tantamount to saying that the harbour company could not lawfully give the public permission to come onto its land. The procedure for making the bye-laws was as follows:

Section 89 provided that:

Section 89 was subsequently repealed by the Statute Law (Repeals) Act 1993 with effect from November 1993.

A bye-law, when validly made, is subordinate legislation. It therefore has the force of local law. As originally enacted the 1847 Act provided for the bye-laws not to be binding until they had been published and put up on boards. I read this requirement to relate to the initial publication and putting up on boards, rather than to relate to a requirement to replace the boards from time to time. It cannot, in my judgment, have been the intention of Parliament that bye-laws would cease to be valid or enforceable if the boards were, say, destroyed in a storm; or that the bye-laws would go in and out of a state of validity depending on the physical condition of the boards. Nor, in my judgment can it have been Parliament's intention that if all the boards disappeared for whatever reason, bye-laws would have to be made all over again. I agree, therefore, with Richards LJ at [71] that the byelaws remain valid and binding. It follows, in my judgment, that while the byelaws remain valid and binding, they bind both the port authority and also persons within the port in the same way as if they had been contained in a local Act of Parliament.

The bye-laws on which our attention was focussed are contained in Part V of the Bye-Laws relating to Newhaven Harbour. They were made by the Southern Railway Company on 20 February 1931 and confirmed by the Minister of Transport on 6 March 1931. There is no reason to suppose that they were not given the publicity required by sections 86 and 87 of the 1847 Act before the Minister confirmed them: omnia praesumuntur rite esse acta (the presumption of regularity). The inspector herself applied the presumption: see her report at [6.21]. In my judgment this is equivalent to a finding of fact (which is unchallenged) that the appropriate procedure (including the requirement of advance publicity, and the publication on boards in the harbour) was followed.

The relevant by-laws are:

Bye-law 68 is plainly prohibitory in nature. But in my judgment bye-laws 70 and 71 are both prohibitory and permissive. A reasonable reader of bye-law 70 would understand it to mean that as long as the playing of games or sports did not obstruct or impede the use of the harbour, they were permitted under the bye-laws. Equally a reasonable reader of bye-law 71 would understand it to mean that as long as a dog was on a lead, it was permitted to bring it into the harbour. Against the background of the public use of the foreshore up and down the country in my judgment this reading would be reinforced. Mr Laurence accepted that properly interpreted these bye-laws were permissive. Mr Sauvain did not. But in my judgment Mr Laurence's concession was rightly made. I agree, therefore, with Richards LJ at [74]. Accordingly the fact is that the port authority consented to the use of the port for these recreational activities.

The question, then, is whether the existence of the bye-laws operates so as to defeat the claim that use of the foreshore was use "as of right" because it was "precario". If (as in this case) the landowner has in fact consented to the use, and there is a written record of his consent, is there a need for anything more? The leading case on that question is Beresford. All the Law Lords agreed that permission to use the land in question could be implied, or inferred from all the circumstances: Lord Bingham at [5]; Lord Hutton at [11]; Lord Scott at [43]; Lord Rodger at [59] and Lord Walker at [83]. Lord Scott considered at [21] that the nature of the land could also be taken into account as among the relevant circumstances. An implied or inferred permission is to be distinguished from mere tolerance or acquiescence. Lord Bingham said at [5] that in the absence of any "express statement, notice or record" a landowner may so conduct himself as to make it clear that use is permissive. In our case, however, we have the statement and record of the bye-laws, which is the local law in force. Lord Rodger said at [59] that the grant of a licence must comprise "a positive act by the owners, as opposed to their mere acquiescence in the use being made of the land." In our case the making of the bye-laws is a positive act. Lord Walker distinguished between consent and acquiescence: the latter denoting "passive inactivity". But in our case the making of the bye-laws cannot be described as passive inactivity. He said at [83] that permission can be "implied by (or inferred from) overt conduct of the landowner." The making of the bye-laws is, in my judgment, overt conduct. The byelaws when in force are after all local law, contravention of which is a criminal offence. Thus far, in my judgment, the circumstances are such as to justify the inference of a grant of permission.

Given the inspector's finding that the bye-laws were duly made, I consider that if an act of communication were necessary it was satisfied once and for all when the byelaws were publicised in advance of their confirmation and published when confirmed. In this respect the inspector adopted what I perceive to be an inconsistent approach. On the one hand she accepted that byelaw 68 was an effective prohibition on swimming and fishing, with the consequence that neither counted as a lawful pastime. But in apparent contradiction of this approach, she did not accept that the remaining byelaws could have been effective to permit use unless they had been publicised during the relevant twenty year period. But in my judgment in the case of a validly made local law, no periodic communication to the public is needed for that law to remain effective.

That conclusion is, to my mind, supported by the decision of Sullivan J in R v Secretary of State for the Environment ex p Billson [1999] QB 374 where the deposit with the Minister of a deed made under section 193 of the Law of Property Act 1925 was a sufficiently overt act to bring to the attention of the public the lack of an intention to dedicate. It is also inferentially supported by the decision of this court in Barkas v North Yorkshire County Council [2012] EWCA Civ 1373, where there is no hint that the fact that a local authority held land for purposes that included recreation had to be communicated to the relevant public.

I would therefore hold that the use of the foreshore was by permission of the port authority, and was not therefore "use as of right". I would dismiss the appeal on that ground.