June 18th, 2013 by James Goudie KC

Section 15(4) of the Commons Act 2006 (“CA 2006”), in relation to registration of town and village greens (“TVG”), is compatible with the right to peaceful enjoyment of possessions pursuant to Article 1 of Protocol 1 to the ECHR (A1P1).  So the Court of Appeal has held in R (Newhaven Port and Properties Ltd) v SoS for DEFRA, East Sussex County Council and Newhaven Town Council [2013] EWCA Civ 673. The Port did not argue that the TVG scheme as a whole is incompatible with A1P1. It accepted that that argument was barred by Oxfordshire County Council v Oxford City Council [2006] 2 AC 674.  The challenge was to Section 15(4) of CA 2006, which applies (broadly) where (a) a significant number of the inhabitants of any locality indulged “as of right” in lawful sports and pastimes on the land for a period of at least 20 years, (b) they ceased to do so before the time of the application but before the commencement of Section 15, and (c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b). By Section 15(1) any person may apply to the commons registration authority to register land to which Part 1 of CA 2006 applies in a case where subsection (2), (3) or (4) applies.

The Port argued that the effect of Section 15 (4) was to deprive it of the statutory defence by which it could have defeated any application which had been made before the Section came into force, namely by demonstrating that use had not continued until the date of the application. The Port argued that in so doing Section 15 (4) is incompatible with A1P1.  It was common ground that CA 2006 (and Section 15 (4) in particular) is an interference with the Port’s peaceful enjoyment of its possessions because it significantly restricts what activities the owner can carry out on the registered land. Thus A1P1 is engaged. It was also common ground that the jurisprudence of the European Court of Human Rights has established that A1P1 involves three distinct rules: the general principle of the peaceful enjoyment of possessions; a rule against deprivation of property, and right on the part of states to control the use of property in the general interest but subject to the striking of a fair balance between that interest and those of the property owner.  It was also common ground that registration of a TVG does not involve a deprivation of possessions, because legal title remains with the owner. This was, therefore, a case of control of use, falling within the second paragraph of A1P1. Lastly it was common ground that the interference had taken place subject to conditions provided for by law; in the sense that the law is clear and accessible. The key issues, therefore, were whether the contested legislation pursues a legitimate aim; and, if it does, whether the means by which it does so are reasonably proportionate to achieving that aim.

The Court of Appeal held that Section 15(4) does have a legitimate aim.  The key issue was that of proportionality.  The Court of Appeal held that the means by which Section 15(4) pursued the legitimate aim, including the period of grace being 5 years rather than a shorter period, are not manifestly without reasonable foundation.  It had been open to the Port to prevent the twenty years use as of right from coming into existence at all.  The Port’s bye-laws amounted to consent to the uses on which the local inhabitants relied.  If the Port had displayed the bye-laws on the quayside or the sea wall the whole problem would have been eliminated.  Moreover, all landowners have effectively been put on notice that those using their land for recreational purposes may well be asserting a public right to do so if their use of the land is more than trivial or sporadic. 

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