High tide for the Commons Act?

Posted: 18th June 2013

Beach2Landowners must be even more astute to the risk that the development potential and value of their holdings could be adversely affected by public access rights after the Court of Appeal rejected arguments that a controversial provision of the Commons Act 2006 is incompatible with human rights.

The owner of a beach, much of which was underwater at high tide, had objected after it was registered by a local authority as a town or village green under section 15(4) of the act on the basis that inhabitants of the locality had used it to indulge in lawful sports and pastimes as of right – without force, without stealth and without permission - for not less than 20 years.

The owner argued that that section 15(4) was incompatible with its right to quiet enjoyment of private property, enshrined within article one of the First Protocol to the European Convention on Human Rights. It was submitted, inter alia, that the retrospective effect of the section – which applies where the public use of the land in question ceased prior to the act coming into force – had been productive of much uncertainty and had a disproportionate impact upon landowners.

The court acknowledged that section 15(4) entails a significant interference with landowners’ rights in that it greatly restricts the activities, including development, which they can carry on on registered land. However, the entitlement not to be deprived of property had to be balanced against public rights in in respect of land which had been used for recreation for extended periods.

Emphasising that decisions of a democratically elected decision making body – in this case Parliament – must be respected by the judiciary, unless manifestly without reasonable foundation, the court ruled that section 15(4) had the legitimate aim of recognising and regularising long-standing public use of land as of right. The same principle applied to the law of adverse possession and the acquisition of easements by prescription.

The court acknowledged that the retrospective effect of section 15(4) produced certain anomalous practical results and that Parliament might have devised a provision that gave greater certainty for landowners or produced a better way of dealing with a perceived problem.

However, the court noted that the owner had had the opportunity to prevent the right to registration from developing by interrupting public use of the beach, or at least use as of right, within the relevant 20-year period. In the circumstances the effect of section 15(4) was neither disproportionate nor manifestly unreasonable.

The owner had succeeded in overturning the registration at first instance. By an earlier decision, the Court of Appeal had reversed that finding, accepting the local authority’s arguments that the criteria for registration of the beach as a town or village green had been met.