A long-running application by East Sussex County Council, on behalf of local residents, to register a beach in Newhaven as a town or village green was finally rejected by the Supreme Court.
Previously, town and village green (TVG) registrations have been a weapon in the armoury of those looking to thwart development. However, the changes to the regime, introduced by the Growth and Infrastructure Bill in 2013, helped to moderate the number of applications for TVG registration and reduced the risk for those looking to develop land.
The recent decision in the case of Newhaven Port & Properties Limited v East Sussex County Council will have helped to strengthen the position of developers and landowners a little bit further.
The application itself was to register a beach which was part of Newhaven Port. The operators of the port claimed that the byelaws which applied to the port also applied to the beach, and accordingly granted an implied licence for members of the public to use the beach. The counter argument by the Council was that the public was not aware of these byelaws.
The Supreme Court upheld the argument by the port operators, which meant that the beach was deemed to have been used by the public “by right” rather than “as of right”. Therefore, the beach was unable to be registered as a TVG.
This will provide encouragement to the development industry, as the Court’s ruling indicates that, where appropriate, landowners can argue that land used by the public is regulated by statutory provisions or byelaws. It seems that whether members of the public are aware if these byelaws exist or not is neither here nor there.
Of course, not all developers will be able to point to local byelaws or provisions as a form of defence against TVG applications. So for those concerned about the threat of a TVG application either thwarting or delaying development works, we can provide a specific indemnity cover, including for cases where a planning application has yet to be submitted to the local authority.
If you’re working on a case that may require our cover, please give our specialists a call on 01603 617617 or email firstname.lastname@example.org.