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||Neutral Citation Number:  EWCA Civ 673
||Case No: C1/2012/1215
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Mr Justice Ouseley
||Royal Courts of Justice
Strand, London, WC2A 2LL
||14 June 2013
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE LEWISON
LADY JUSTICE GLOSTER
|| R (ON THE APPLICATION OF
NEWHAVEN PORT & PROPERTIES LIMITED)
||- and -
||THE SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS
EAST SUSSEX COUNTY COUNCIL & NEWHAVEN TOWN COUNCIL
Mr Charles George QC & Mr Philip Petchley (instructed by Dmh Stallard LLP) for the Appellant
Mr Tim Buley (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 21 May 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Lewison:
- On 18 December 2008 Newhaven Town Council ("Newhaven") applied to the East Sussex County Council ("the Council") to register land at West Beach, Fort Road, Newhaven as a town or village green (a "TVG"). A TVG is land on which the inhabitants of any locality have indulged in lawful sports and pastimes as of right for not less than twenty years. The application was made under the Commons Act 2006, section 15(4). This sub-section applies where the use of the land in question ceased before section 15 came into force. According to the application the claimed use as of right ended on 6 April 2006. The land was (and remains) owned by Newhaven Port and Properties Ltd ("the Port"), which operates the port of Newhaven as part of its statutory undertaking. The Port objected to the application. So the Council, as registration authority, appointed an inspector to consider the merits of the application and to report.
- The inspector subsequently submitted a report to the Council together with her recommendation that the application be accepted. The Council accepted her recommendation and registered the land as a TVG. The Port was dissatisfied with the Council's decision and applied for judicial review. Ouseley J quashed the registration; but the Council appealed to this court. By a majority this court allowed the Council's appeal, and restored the registration: see  EWCA Civ 276. I will assume that anyone interested in this judgment will have read that one, in which the background to the case is set out fully. One of the main issues before the court on that occasion was whether use of the beach for lawful sports and pastimes was use "as of right". Use "as of right" is use without force, without stealth and without permission. What divided the court was whether the use in question was use without permission. The Port had made bye-laws which, as a matter of construction, permitted many of the activities on which the local inhabitants relied. The majority (Richards and McFarlane LJJ) decided that that was not enough. The permission had to be communicated to the local inhabitants during the twenty year period on which they relied. As the minority judge I held that the mere fact of permission and an objective record of it was enough to make the use permissive. Subject to any further appeal to the Supreme Court there the matter rests as a question of domestic law.
- However, one of the grounds of challenge before Ouseley J, which he rejected, was that section 15 (4) was incompatible with the Port's rights under Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms ("A1P1"). His judgment on that question is at  EWHC 647 (Admin)  to . This appeal is concerned with that issue. The Port's contention is opposed both by the Secretary of State for Environment, Food and Rural Affairs; and also by the Council and Newhaven. However, neither the Council nor Newhaven have appeared on this part of the appeal. For the reasons that follow I agree with the judge that section 15 (4) is not incompatible with A1P1; and would dismiss the appeal.
- The Port does not argue that the TVG scheme as a whole is incompatible with A1P1. It accepts that that argument is barred by Oxfordshire County Council v Oxford City Council  2 AC 674 ("the Oxfordshire case").
- That case in its various stages crops up at different points in the argument. It forms part of the background to the contested legislation. At this point, I merely summarise the chronology:
i) 18 November 2003 to 10 December 2003: hearing before Lightman J.
ii) 22 January 2004: Lightman J gives judgment.
iii) 17 to 20 January 2005: the hearing before the Court of Appeal.
iv) 24 February 2005: the Court of Appeal give judgment reversing Lightman J in part.
v) 19 January 2006: the Commons Bill 2006 is brought from the House of Lords to the House of Commons.
vi) 27 March to 3 April 2006: the hearing before the House of Lords.
vii) April 2006: the Port fences off access to the land which was ultimately registered as a TVG.
viii) 24 May 2006: the House of Lords give judgment reversing the Court of Appeal.
ix) 19 July 2006: the Commons Act 2006 is passed.
x) 6 April 2007: section 15 of the Act comes into force.
xi) 18 December 2008: the application for registration is made.
The legislation and its history
- The Commons Act 2006 is Parliament's third attempt to devise an acceptable and workable scheme for the registration of TVGs. A TVG was originally defined by section 22 of the Commons Registration Act 1965. The original definition was (so far as relevant):
"town or village green" means land …on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than twenty years."
- One of the questions thrown up by this definition was whether proof of any period of twenty years' use would justify registration; or whether the twenty year period of use had to be a continuing period. If it had to be a continuing period of use, up to what date did it have to continue? The courts provided conflicting answers to this question. Lord Hoffmann summarised some of the different views in his speech in the Oxfordshire case at :
"41 Section 22 as originally enacted said that land which the inhabitants of the locality have used for sports and pastimes "for not less than 20 years" was a village green. It did not specify when that period should end. In New Windsor Corpn v Mellor  Ch 380, the Court of Appeal thought that it meant 20 years before the passing of the Act. In Ministry of Defence v Wiltshire County Council  4 All ER 931, 938 Harman J thought it meant 20 years before the date of the application for registration: see also R v Norfolk County Council, Ex p Perry (1996) 74 P & CR 1, 5 (Dyson J) and Caerphilly County Borough Council v Gwinnutt (unreported) 16 January 2002 (Judge Moseley QC). But Mr Edwards, who appeared for Miss Robinson and Mr Laurence, who appeared for the registration authority, said that as the definition did not specify any terminal date, it meant any period of 20 years. On the expiry of a 20-year period of user, the land became a village green. If it had become a green before 1970 and had not been registered, it would be deemed by section 1(2)(a) not to have been a village green on the appointed day. But any 20-year period expiring after the appointed day would do."
- At first instance Lightman J accepted this argument:  EWHC 12 (Ch)  Ch 253 at . However, the Court of Appeal disagreed:  EWCA Civ 175  Ch 43 at . The House of Lords found it unnecessary to decide the point:  AC 674 at . But as I read their speeches, both Lord Rodger at  and Baroness Hale at  thought that any period of twenty years' use could support a registration. It seems to me that the views of Lightman J, Lord Rodger and Baroness Hale are at least consistent with what Lord Hoffmann had said (with the agreement of all the Law Lords) in the earlier case of R v Oxfordshire County Council, ex p Sunningwell Parish Council  UKHL 28  1 AC 335. He traced the development of the law relating to the acquisition of private easements by prescription. He noted that one method of acquisition was by use as of right for a period of twenty years resulting in the presumption of a fictitious lost modern grant, concluding that:
"The result of these developments was that, leaving aside the cases in which it was possible to show that (a) the right could not have existed in 1189 and (b) the doctrine of lost modern grant could not be invoked, the period of 20 years' user was in practice sufficient to establish a prescriptive or customary right."
- He considered that many of the same considerations applied to the acquisition of public rights; and said:
"My Lords, this was the background to the definition of a "town or village green" in section 22(1) of the Act of 1965. At that time, there had been no legislation for customary rights equivalent to the Act of 1832 for easements or the Act of 1932 for public rights of way. Proof of a custom to use a green for lawful sports and pastimes still required an inference of fact that such a custom had existed in 1189. Judges and juries were generous in making the required inference on the basis of evidence of long user. If there was upwards of 20 years' user, it would be presumed in the absence of evidence to show that it commenced after 1189. But the claim could still be defeated by showing that the custom could not have existed in 1189. … It seems to me clear that class c in the definition of a village green must have been based upon the earlier Acts and intended to exclude this kind of defence. The only difference was that it allowed for no rebuttal or exceptions. If the inhabitants of the locality had indulged in lawful sports and pastimes as of right for not less than 20 years, the land was a town or village green."
- Be that as it may, the law was changed by section 98 of the Countryside and Rights of Way Act 2000 ("CROW"), with effect from 30 January 2001. The amended section read as follows:
"town or village green" means land …which falls within subsection (1A) of this section..
(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either—
(a) continue to do so, or
(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.
(1B) If regulations made for the purposes of paragraph (b) of subsection (1A) of this section provide for the period mentioned in that paragraph to come to an end unless prescribed steps are taken, the regulations may also require registration authorities to make available in accordance with the regulations, on payment of any prescribed fee, information relating to the taking of any such steps."
- The public benefited from the extension of qualifying inhabitants to inhabitants of a "neighbourhood" as well as a "locality". But landowners benefited from the express requirement that the use had to continue. It is to be noted, however, that the continuation of use had to be continued use as of right. Thus it remained open to landowners to preclude continuation of use as of right by granting revocable permission for that use, even after the twenty year period had elapsed. One of the perceived problems arising out of this amendment was that local inhabitants would not realise that a long standing use was under threat merely because the landowner granted permission for that use to continue.
- The amended legislation still left open the question: until what date must the use continue for the purposes of section 22 (1A) (a)? Again the courts differed in their interpretation. Lightman J held that the use had to continue until the date of the application for registration:  EWHC 12 (Ch)  Ch 253 at . The Court of Appeal disagreed, and held that the use had to continue until the date of registration:  EWCA Civ 175  Ch 43 at .
- The Secretary of State intervened in the Oxfordshire case in the House of Lords. The argument advanced by counsel on his behalf was that the use had to continue until "the date of application or the date on which the right of the relevant inhabitants is brought into question." Baroness Hale thought that the argument based on the date when the right was questioned was attractive, but ultimately rejected it. The House of Lords disagreed with the Court of Appeal, and accepted the Secretary of State's alternative argument that the use had to continue until the date of the application for registration:  AC 674 at . However, Lord Scott added that if the landowner prevented use for lawful sports and pastimes after a twenty year period had expired an application for registration could still be made if it were made more or less immediately:  AC 674 at . In his view:
"The requirement of continuance needs … to be approached in a commonsense fashion. Has the previous public user fallen into disuse is … the right question to be asked."
- Sub-section (1A) (b) envisaged that regulations might be made which would allow applications for registration of a TVG to be made even after the use had ceased. On the face of the sub-section there was no limit on the period of non-use that could be prescribed. In fact no regulations were ever made; but the possibility remained.
- Following the changes made by CROW, in 2002 the government, acting through the Department for Environment, Food & Rural Affairs, issued the Common Land Policy Statement. Paragraph 45 of that Statement referred back to a previous consultation in which it had been proposed that:
"in future it should be possible to apply for registration as a town or village green on the basis of at least 20 years' qualifying use not only if (as at present) the use is still continuing, but also up to 5 years after the use ceased (Proposal 8)…"
- The Policy Statement noted that that proposal was supported by a large majority of respondents to the consultation. The Policy Statement noted that some uncertainties had been dealt with by CROW and continued:
"In particular it provides for regulations to be made prescribing a period within which a registration application must be lodged when qualifying use of the land has ceased. The courts have tended to the view that when the use is challenged or prevented, applicants must stake their claim that the land has become their green with due expediency. If there is a long delay during which the evidence is gathered and the application prepared, this can be prejudicial to the success of the application. There is, however, a contrary view that the legislation does not impose any requirement for such expediency once the 20-year period has elapsed."
- This presciently anticipates the divergent views that were expressed in the Oxfordshire case.
- Paragraph 48 of the Policy Statement continued:
"We believe that there would be advantage in greater clarity on what is required, and hence suggested a five year deadline in proposal 8. This would allow ample time for the preparation of an application and a clear cut off point for the landowner. Following the debates in Parliament on the CROW Act 2000 however, we concluded that this was too long because it imposes uncertainty for an unacceptably long period in cases where the landowner wants to sell or develop the land. As indicated in Parliament, we therefore plan to use the regulation-making powers in section 98 of the CROW Act to provide that potential applicants should have a prescribed period from the date on which their use was challenged in which to lodge a registration application. This will provide certainty for applicants, landowners and registration authorities as to the timeliness of any applications. We are minded to make this period two years but will consult on draft regulations."
- In the event, however, there was no further consultation and no regulations were ever made. The underlying reason appears to be that the government took the view that the question was of such importance that it ought to be the subject of primary legislation. There was also a concern that the regulation making power did not permit the making of regulations that would apply to periods of use as of right that terminated before the regulations were actually made.
- The Commons Bill 2006 went through Parliament in the 2005-6 legislative session. It was introduced into the House of Lords on 27 June 2005. The five year transitional provision in what became section 15 (4) was introduced at Report Stage in that House on 28 November 2005. It was brought to the House of Commons on 19 January 2006. As is the current practice the Bill was accompanied by explanatory notes. The January 2006 version of those notes explained in relation to clause 15:
"Subsection (1) provides that in qualifying circumstances, any person may apply to the commons registration authority to register land as a green. Subsections (2) and (3) set out the qualifying circumstances. The first case is where a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and continue to do so at the time of the application. 'As of right' has been defined in case law as meaning openly, without force, and without permission. The second case is where a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years which has ceased, and the application is made within the relevant period after this use ceased. Subsection (6) says that the relevant period is normally two years, but provides that where use as of right has ceased before commencement of the clause, it is five years."
- The counterpart of section 15 (4) as eventually enacted was clause 15 (4). That provided:
"(4) This subsection applies where—
(a) a significant number of local inhabitants 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 commencement of this section;
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b); and
(d) the land was neither covered by a building nor within the curtilage of a building on 18 April 2006."
- It will be seen that clause 15 (4) in its then form was only disapplied where the land was actually covered by a building or within the curtilage of a building on 18 April 2006. This was modified during the Bill's further passage through Parliament. The change took place late in June 2006.
- It is particularly to be noted that when the Port barred public access to the beach in April 2006 the then state of the Bill made it clear that the effect of barring access would not prevent registration of the beach as a TVG, once the Bill had become law. There was, perhaps, a risk that the Bill would not become law in anything like its then form; but the writing was, so to speak, on the wall. The Port cannot reasonably have considered that by barring access to the beach in April 2006 it had thereby removed the possibility of the beach being subsequently registered as a TVG.
- The current provision is section 15 of the Commons Act 2006 which provides, so far as relevant:
"(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.
(2) This subsection applies where–
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application.
(3) This subsection applies where–
(a) 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;
(b) they ceased to do so before the time of the application but after the commencement of this section; and
(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b).
(4) This subsection applies (subject to subsection (5)) where—
(a) 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;
(b) they ceased to do so before the commencement of this section; and
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).
(5) Subsection (4) does not apply in relation to any land where–
(a) planning permission was granted before 23 June 2006 in respect of the land;
(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and
(c) the land–
(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or
(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.
(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.
(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied–
(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and
(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right"."
- By virtue of article 3 of the Commons Act 2006 (Commencement No 2, Transitional Provisions and Savings) (England) Order 2007 section 15 came into force on 6 April 2007.
- Section 15 (5) as enacted gives greater protection to the landowner than the Bill in its former version. Moreover, it closely follows the policy outlined in the 2002 Policy Statement. That statement:
i) noted that the original proposal for a five year period was supported by the majority of respondents to the consultation;
ii) took the view that a five year period imposed unacceptable uncertainty on landowners wishing to sell or develop their land;
iii) said that the government was minded to prescribe a period of two years;
iv) but said that the government would consult before the final decision was taken.
- Section 15 (4) as enacted retained the five year period originally proposed and supported by the majority of respondents to the consultation. But it differentiates between landowners who had obtained and had begun to implement planning permission and those who had not. This responded to at least part of the perceived defect in the original proposal; namely that the five year period was too long in cases where the landowner wanted to develop the land.
The effect of section 15
- It is important to be clear about how section 15 operates. I fear that there was some confusion about this in the court below and, indeed, in some of the submissions made to us by Mr George QC and Mr Petchey, appearing for the Port.
- The overall aim of the Commons Act 2006 is not in doubt. It is to legitimise long recreational use by local inhabitants of open spaces, provided that the use has continued "as of right" for a period of twenty years. As mentioned, use as of right means use without force, without stealth and without permission. Accordingly use as of right can, in principle, be stopped if the landowner grants permission for the use, or prevents access to the land. All rights of registration under section 15 require the local inhabitants to establish twenty years use "as of right". Thus under section 15 it remains open to a landowner to prevent use from being use as of right if within the twenty year period he grants permission for the use to continue, or bars access to the land. Thus each of the gateways to registration takes as its starting point the fact that the landowner has acquiesced in public recreational use for at least twenty years.
- Once the twenty year period has expired, section 15 (7) prevents a subsequent grant of permission from having this effect. It does this by providing that for the purpose of section 15 (2) (a) use as of right is treated as continuing. However, the grant of permission was only one way in which use could be prevented from counting as use as of right. Another way was by barring access to the land, with the consequence that either (a) any subsequent use of the land would not be use without force or (b) the use would cease altogether. Where that happens after the commencement of section 15, section 15 (3) gives the inhabitants a period of two years in which to make their application for registration. Since section 15 (3) only applies if the use continues after the commencement of the section, there was no need to provide for section 15 (7) to apply to section 15 (3) (b), since the use as of right would be deemed to be continuing (and hence not to have ceased) as a result of section 15 (2) (b).
- Section 15 (4) applies where three conditions are satisfied. The first is that local inhabitants have indulged in lawful sports and pastimes as of right for twenty years. Thus it will have been open to the landowner, before the expiry of the twenty year period, to have prevented the use from being use as of right by the grant of permission or by barring access. Section 15 (4) is therefore predicated on the assumption that the landowner has not availed himself of that opportunity. So the starting point is that the local inhabitants have established a full period of twenty years' use as of right. The second condition is that use as of right ceased before the commencement of the section. As noted, use will cease to be use as of right if it is forcible or permissive. But section 15 (7) applies only for the purposes of section 15 (2) (b). It does not apply to section 15 (4). If, therefore, a landowner granted permission for use to continue after the expiry of the twenty year period, but before the commencement of the section, then the use will have ceased to be use as of right for the purposes of section 15 (4). This is more favourable to the landowner than the position of the landowner under section 15 (2) or section 15 (3).
- The third condition is that the application for registration must be made within five years beginning with the cessation. The important point to note about this condition is that time begins to run from the date at which the use ceased; not from the commencement of the section. Thus if the use ceased more than five years before the section came into force (i.e. before 6 April 2002), section 15 (4) would not have helped the local inhabitants. By the same token the period after the commencement of the section within which an application could be made would be measured on a sliding scale, according to when the use as of right actually ceased.
- In  the judge described section 15 (3) and (4) as "transitional provisions". That is true of section 15 (4). But section 15 (3) is not a transitional provision, as I have explained. At  the judge said:
"Mr George does not and, in my view, could not realistically suggest that there was any problematic retrospectivity in such a transitional provision in principle. His submission is in reality directed to its length, especially once it exceeds the two year period in subsection (3) and endures for pre-Act cessations longer than that for the early post–Act cessations. It is however, a period of grace which ends on 6 April 2012, which could never have covered a cessation before April 2002 and, as the years go by, which ceases to be available to those who do nothing about applications which they could have made."
- There are two points to be made about this. First, it is not necessarily the case that the period of grace endures for pre-Act cessations longer than that for the early post–Act cessations. It depends upon when the pre-Act cessation took place. If it took place, say, four years before the commencement of the section, then the effective period of grace is only one year. Second, it is not the case that the period of grace will end on 6 April 2012. When the period of grace ends will depend on when the cessation took place. In  the judge said:
"[Parliament] was entitled to conclude that the time of cessation which would not debar an application should cover most of the period of uncertainty when regulations could have been expected. It was entitled to conclude that the period from April 2007 within which the application would be made should not be two but five years."
- But the period within which an application could be made was not five years from April 2007: it was five years from the cessation of use as of right which necessarily pre-dated April 2007. In the same paragraph the judge said:
"The fact that for a period a person whose user expires before April 2007 is better off than someone whose user expires after it, does not show arbitrariness in an objectionable sense. These are two different cases. A sliding scale could have been introduced to create some perfect alignment of the periods but the absence of that legislative sophistication cannot show that those landowners whose cases fall on the wrong side of the line have had their human rights breached."
- This is, I think, too dogmatic. It is true that some people whose use ceased before April 2007 will be better off than someone whose use as of right ceases after that date. That class of person consists of those whose use ceased after April 2004; and where the reason that the use ceased to be use as of right was not that it became permissive. In fact to some extent section 15 (4) does introduce a sliding scale. The scale slides according to when the use as of right ceased.
- Moreover, section 15 (4) does not apply at all if the landowner had obtained and begun to implement planning permission for substantial works before 23 June 2006.
A1P1: the principles
- The Port argues 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 argues that in so doing section 15 (4) is incompatible with A1P1.
- A1P1 provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties"
- It is common ground that the Commons Act 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 is 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 is also common ground that (at least at this level in the judicial hierarchy) registration of a TVG does not involve a deprivation of possessions, because legal title remains with the owner. This is, therefore, a case of control of use, falling within the second paragraph of A1P1. Lastly it is common ground that the interference has taken place subject to conditions provided for by law; in the sense that the law is clear and accessible. Mr George did say that the law was arbitrary, but accepted that this did not add to the other arguments.
- The key issues, therefore, are:
i) Does the contested legislation pursue a legitimate aim; and
ii) If so, are the means by which it does so reasonably proportionate to achieving that aim?
- In Salvesen v The Lord Advocate  UKSC 22 Lord Hope summarised the established principles as follows at :
"The second paragraph of A1P1 must be construed in the light of the principle laid down in the first sentence of the article: James v United Kingdom (1986) 8 EHRR 123, para 37. An interference must achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights: Sporrong v Sweden (1983) 5 EHRR 35, para 69. The search for this balance is reflected in the structure of the article as a whole and therefore also in the second paragraph: Mellacher v Austria (1990) 12 EHRR 391, para 48. There must be a reasonable relationship of proportionality between the means employed and the aim pursued: James v United Kingdom, para 50; Mellacher v Austria, para 48."
- He continued at :
"There is no doubt that, as regards the question whether it is pursuing a legitimate aim in the general interest, the Parliament has a broad area of discretion in the exercise of its judgment as to social and economic policy: Hutten-Czapska v Poland, paras 164-166; Gauci v Malta, para 54. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the court to say whether the legislation represents the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way: James v United Kingdom, para 51; Mellacher v Austria, para 53. But there must be a fair balance if the requirement of proportionality is to be satisfied. The balance that must be struck is between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual. The question is whether the general interest demands in this case were sufficiently strong to justify the extent of the prejudice that the legislation gives rise to: Lindheim and others v Norway, para 129."
- At  to  Lord Hope made the point that whether contested legislation is compatible with A1P1 must primarily be judged objectively on the basis of what it says. But remarks made by promoters of the legislation during its passage through the legislature may be relevant in identifying the aim which the contested legislation pursues.
- Finally at  Lord Hope said:
"As the court said in Bäck v Finland (2005) 40 EHRR 48, para 68, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy that was being adopted. Legislation which is retroactive is not necessarily incompatible with A1P1: MA v Finland (2003) 37 EHRR CD 210, 217. As the court pointed out in that case, retrospective legislation is not as such prohibited by that provision."
- There are a few additional points on the general approach to A1P1 that I need to deal with. Mr George submitted that the "burden of proof" lay on the Secretary of State to justify both the legitimate aim and the proportionality of the contested legislation. He relied on the observation of Lord Hope in AXA General Insurance Ltd v HM Advocate General  UKSC 46  1 AC 868 at  ("AXA"):
"If it is to be held to be compatible with the appellants' Convention right, the 2009 Act must be shown to be pursuing a legitimate aim and to be reasonably proportionate to the aim sought to be achieved."
- I accept that the burden lies on the state to justify contested legislation. But I do not draw from that the proposition that the state must adduce evidence to demonstrate what the aim of the legislation was, the proportionality of the measure in question, or whether human rights considerations played any overt part in the thinking either of the sponsors of the legislation or of the members of Parliament who voted for it. The aim of the legislation and the proportionality of the response must be objectively ascertained, principally by reference to the legislation itself, with the aid of other materials so far as they are helpful.
- Second, in cases involving social and economic policy (of which this is one) both in evaluating the legitimacy of the aim and the proportionality of the means by which the aim is to be achieved the court will respect the legislature's judgement on what is in the public interest unless the aim and proportionality are, respectively, "manifestly without reasonable foundation.": James v United Kingdom (1986) 8 EHHR 123 at ; AXA at ; JA Pye (Oxford) Ltd v United Kingdom  1 EGLR 111 at .
- Ouseley J said at :
"I reject the notion that a court should not conclude that a legislative aim was legitimate in the absence of evidence in support from a Government Department, making the executive responsible for expressing and justifying the views of Parliament, as expressed in primary legislation. Rather, a court should see in what Parliament has enacted a legitimate and proportionate aim unless the contrary is unequivocally proved."
- I agree entirely with the first of the quoted sentences. If the judge meant by the second sentence that the court will respect the decision of a democratically elected decision making body unless it is manifestly without reasonable foundation then I agree with that too. But if he meant that it was not for the state to justify contested legislation then I respectfully disagree.
- Third, where contested legislation is retrospective or retroactive it requires "special justification": Bäck v Finland (2004) 40 EHHR 1184 at ; AXA at . Legislation may be considered to be retroactive where the consequences of what was done in the past are governed not by the law in force at the time, but by legislation passed later: AXA at . However, it is not sufficient merely to label legislation as retrospective or retroactive. What the court must do is to evaluate the degree of unfairness (if any) in the retrospective or retroactive effect of the legislation. In this connection retrospective or retroactive legislation which is passed in order to restore the legal position to what it was previously understood to be is less objectionable than legislation that changes the law: AXA at  to . But even a change in the law may be justified under A1P1. Thus the introduction of rent controls applicable to existing leases (Mellacher v Austria (1989) 12 EHHR 391) and the conferring on tenants under existing leases of the right to acquire the freehold (James v United Kingdom) have each been upheld by the European Court of Human Rights.
- Fourth, although the payment of compensation is not mandatory in cases involving the control of property, whether compensation is payable (and if so how much) is relevant to assessing proportionality: Draon v France (2005) 42 EHHR 807 at ; AXA at .
- Fifth, in assessing proportionality it is also relevant to consider whether the complainant could have taken action to avoid the predicament in which he finds himself: Leeds Group plc v Leeds City Council (No 2)  EWCA Civ 1447  1 WLR 1561 at . This includes action which the complainant could have taken either before the contested legislation is enacted, or before its effects are felt: Leeds Group plc v Leeds City Council (No 2) at ; JA Pye (Oxford) Ltd v United Kingdom  1 EGLR 111 at .
- The policy underlying section 15 (as a whole) was clearly explained by the minister responsible for the Bill in the House of Lords, Lord Bach. In the course of debate on 28 November 2005 he said:
"Our starting point in all of this is that where people have genuinely used a local area of land for their recreation as of right – (that is, openly, without permission, and without force) – and can show that this kind of use has continued for at least 20 years, it should be possible for them to get the land registered as a green. But if one or more of these things cannot be shown, then registration must remain impossible."
- It is plain that a policy which recognises and regularises a long-standing state of affairs is a legitimate aim. It is the basis for the law of adverse possession and the acquisition of easements by prescription. It hardly needs authority for such a self-evident proposition, but if authority is needed Pye at  provides it. The aim is in my judgment the more legitimate where (as here) (a) the long-standing state of affairs is itself dependent on the acquiescence of the landowner and (b) the rights created by the regularisation of that state of affairs are, effectively, public rights. In addition this starting point echoes the way in which the doctrine of lost modern grant operates in the sphere of the acquisition of private easements; and the rebuttable statutory presumption that a way over land has been dedicated as a highway after twenty years public use: Highways Act 1980 s. 31.
- In addition this policy can be said to represent at least a tenable view of the law as it was before CROW. In that sense, therefore, the aim of section 15 (taken as a whole) was to bring the law back to an approximation of what the law (on one view) was thought to be.
- Section 15 (2) required the use as of right to continue up to the date of the application. It will be recalled, however, that use continues to be use "as of right" despite the grant of post-Act permission. Section 15 (3) therefore is concerned principally with cases where access to the land is barred. If access to the land is suddenly barred, then in most cases the use will cease completely. In such a case it would be too late for local inhabitants to apply for registration of a TVG under section 15 (2). Government policy in such cases was to allow a "period of grace" to enable an application for registration to be made. Lord Bach explained this in the same debate:
"The underlying principle is that after that period of grace has elapsed it would be too late to apply for registration unless a fresh 20 years' use was subsequently accumulated."
- The reason for the two year period was to enable the inhabitants to do the necessary research and gather the necessary evidence to support an application. In selecting that period Lord Bach explained that:
"There is a balance to be struck. Yes, we must help landowners who wish to do so to achieve greater clarity about the status of such areas of land without encountering endless delay and uncertainty; but on the other hand there need to be a fair opportunity for an application to be made to register land as a green if it has been used in a qualifying way for at least 20 years but its use is then brought into question."
- This, too, is plainly a legitimate aim; and Mr George did not dispute that.
- Lord Bach then discussed what was to happen where use had ceased before the commencement of the Act. He noted expressly that the two year period had been chosen on the footing that the relevant challenge to the long-standing use would be "physical exclusion of people or overt prohibition of access." This would put local inhabitants on notice of the challenge. He contrasted that position with pre-Act use. In such cases, as he pointed out, use would cease to be use as of right if the landowner merely put up a "welcome notice" (i.e. granted revocable permission for the use to continue). That, he said would:
"… have failed to put local people on notice that that apparently friendly action constituted a threat to their future use of the land. That is why we suggest that a five year period of grace should apply in any case where the 20 years' use as of right was achieved, but then ended before commencement of that clause."
- Thus the aim of section 15 (4) was to give local inhabitants a longer period of grace in order to take account of the fact that the threat to their continued use was not as obvious as in cases of post-Act cessation. In my judgment that, too is a legitimate aim; and is consistent with the overall policy that once twenty years use as of right has been established "it should be possible … to get the land registered as a green".
- I also accept the submission of the Secretary of State that there was considerable uncertainty about the state of the law at the time when the Bill was passing through Parliament. The very fact that the three courts in the Oxfordshire case reached different conclusions shows that. An attempt to clarify the law is of itself a legitimate aim.
- Mr George did not suggest that a post-Act period of grace in relation to pre-Act cessation was itself illegitimate or, indeed, disproportionate. What he principally complained about was the length of the period, as compared with the two year period of grace allowed in relation to post-Act cessation. Accordingly the key question becomes that of proportionality.
- The first point to note on the question of proportionality is that it was open to the Port to prevent the twenty years use as of right from coming into existence at all. When this case was last before this court we decided unanimously that the Port's bye-laws amounted to consent to the uses on which the local inhabitants relied. What divided us was whether the bye-laws needed to be communicated to the public within the twenty year period. It follows, therefore, that if the Port had displayed the bye-laws on the quayside or the sea wall the whole problem would have been eliminated. Second, as Sullivan LJ pointed out in Leeds Group plc v Leeds City Council (No 2) at  since the decision of the House of Lords in R v Oxfordshire County Council, ex p Sunningwell Parish Council in 1999 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. The fact that the Port's predicament has come about because of its own acquiescence in a long-standing state of affairs also means, in my judgment, that the case for compensation is a particularly weak one.
- Third, I have already noted that in relation to the question whether use was continuing Lord Scott in the Oxfordshire case had expressed the view that the right question to ask was whether the use had fallen into disuse. The selection of a five year period running from cessation of use as of right is or may be a pragmatic way of asking this question.
- Fourth, section 15 (4) will apply to cases in which the use is continuing, but it has ceased to be use as of right (because it has become permissive). This, as Lord Bach explained, was the critical difference between the operation of section 15 (3) and section 15 (4). Thus it is not possible simply to compare the two year period of grace allowed under section 15 (3) and the five year period of grace allowed under section 15 (4) as if both sub-sections dealt with the same thing. This critical point was overlooked both in the court below and in the submissions that Mr George made to this court. As Mr Buley, appearing for the Secretary of State, put it section 15 (3) is not an analogue for section 15 (4). In their written argument Mr George QC and Mr Petchey argue that:
"Had the provision been limited to a short period after the cessation of the use, then there might have been a legitimate aim: namely to deal with the situation where a landowner, by erecting fencing or prohibitive notices, brought the user to an end but where it was reasonable to allow a relatively short period for the application to be made."
- The problem with this submission is that if the period had been limited to a short period after the cessation of the use as of right (as opposed to a short period after the commencement of the section) it might have been of very little practical benefit to anyone. Moreover, it overlooks the fact that use as of right could have been stopped by the grant of permission.
- Fifth, this critical difference also disposes of Mr George's complaint that there was no transitional period suspending the retrospective effect of section 15 (4). As Mr Buley submitted, given that section 15 (4) permitted a landowner to terminate use as of right simply by giving permission for its continuation, a transitional provision of the kind suggested by Mr George would have defeated its whole purpose. In addition, as noted, by the time that the Port barred access to the beach the draft legislation was in substantially the same form as the eventual enactment. So the Port cannot have been lulled into any false sense of security: see Leeds Group plc v Leeds City Council (No 2) at .
- Sixth, the period of grace runs from the date when the use ceased to be use as of right; not from the date of the Act. Accordingly, although some groups of inhabitants had (nearly) five years post-Act in which to make an application for registration of a TVG many groups will have had a much shorter period, depending on when use ceased to be use as of right. This, too, vitiates the straightforward comparison between section 15 (3) and 15 (4) that Mr George urged.
- Seventh, section 15 (5) gives a substantial measure of protection to landowners, which is not available under section 15 (3). The very fact that section 15 (5) exists at all (and, moreover, was amended in landowners' favour during the passage of the Bill) shows, to my mind, that Parliament did balance the interests of local inhabitants and landowners.
- Mr George also submitted that it was unfair for Parliament to have passed section 15 (4) without consultation beforehand, and that the unfairness was all the greater in the light of the statement in the Common Land Policy Statement that the government's then intention was (a) to prescribe a period of two years and (b) to consult before further regulations were made. The judge said at :
"I do not attribute significance to the Government's promise in the Common Land Policy Statement 2002 that it would consult on the period of grace in any regulations put forward under s22(1A), for the absence of consultation about the period inserted into primary legislation. Parliamentary process is not subject to such legitimate expectations, as Mr George recognised; and there was no actual failure in any promise made by government at all. The absence of such consultation cannot show that an otherwise legitimate interference with A1P1 rights was illegitimate. It could reinforce an argument that no reasonable aim existed or that the asserted aim was not the one pursued. But that is not the position here."
- I agree.
- Finally, the fact that Parliament might have devised a provision that gave greater certainty for landowners, or a conclusion that section 15 (4) was not the best way of dealing with the perceived problem, does not entail the conclusion that section 15 (4) is non-compliant with A1P1: James v United Kingdom at . In this connection it is perhaps worth repeating that the original proposal for a blanket period of grace of five years was supported by a majority of respondents to the consultation.
- In my judgment the Secretary of State has demonstrated that section 15 (4) pursues a legitimate aim; and that the means by which it pursues that aim are not manifestly without reasonable foundation. I would dismiss the appeal on this question.
Lady Justice Gloster:
- I agree with Lewison LJ that the Port's appeal should be dismissed for the reasons which he has given. I also agree with the judgment of Lloyd LJ which I have had the advantage of reading in draft.
Lord Justice Lloyd:
- I agree with Lewison LJ that the Port's appeal should be dismissed for the reasons that he has given. In particular, I agree that it was not inconsistent with A1P1 for the Commons Act 2006 to provide for the opportunity to apply for registration of a TVG even though user as of right has already come to an end, and even if that cessation occurred before the commencement of the relevant provision of the Act. I note that Lord Scott expressed the view in the Oxfordshire case at paragraph 109 that an application should be possible after cessation of use, so long as it is made reasonably promptly. I also note, from an internal note of DEFRA in April 2003, that the Department expressed the view, described as an informal view but, it seems, made public on its website, that in the absence of regulations made under CROW, commons registration authorities should continue to allow whatever reasonable period for lodging an application, after the end of qualifying use, as they would have done before section 98 was enacted. On the construction of the previous legislation decided on by the House of Lords in the Oxfordshire case, it is hard to see how this could be correct, but this attitude reveals, at any rate, a feeling that it ought to be so. Given that there must already have been twenty years' uninterrupted use as of right, and that the landowner might well get to hear of steps being taken locally to prepare the necessary materials for an application for registration, so as to be able to take pre-emptive steps to put an end of the use as of right (a point to which Lord Scott referred in the passage in his judgment which I have mentioned), it seems to me that a legislative objective of allowing a period after pre-commencement cessation of use as of right in which an application for registration can be made was an entirely justifiable policy in relation to the Commons Act 2006.
- As noted by Lewison LJ, Mr George did not argue against that proposition as such. He complained of the length of the period of five years under section 15(4) which runs from the cessation but must necessarily include at least one day after the commencement of the section. It would have been possible to adopt a different formula. For example, the legislation might have applied to a cessation at any time within a defined period of years before the commencement date, and have allowed an application for registration so long as it is made before the later to expire of (a) a defined period (whether two years or more) from the date of cessation and (b) a defined period (say, six months) from the commencement date of the section. That would have been a more sophisticated provision, with different effects from the provision actually adopted, depending on the particular periods used. But the fact that one can devise other, even if arguably better, provisions to meet the particular aim does not show that the formula adopted is manifestly without reasonable foundation, or even that it is disproportionate. The five year period in fact adopted would be of little use in a case where the use as of right came to an end nearly five years before commencement, unless the applicants for registration had been diligent in preparing for an application in the period between the passing of the Act and its commencement date, so as to be able to put an application in within a short time after commencement. In a case such as the present, on the other hand, the five year period allowed longer than turned out to be necessary. The period may therefore, in some cases, have been generous, but by no means in all cases, and even if it were, that does not make it disproportionate. I also agree with Lewison LJ that it is significant that a cessation occurring before commencement of the Act might be the result of the public grant of permission for the relevant use, which might well not make users aware that they would need to assert their right by applying for registration in the same way as exclusion from the land would.
- As Lewison LJ says, I agree that the omission to provide a period during which the landowner could take steps before the Act come into force to prevent an application being made after commencement is not a factor which renders this legislation disproportionate, still less manifestly unreasonable. The legislative mischief is quite different in kind from that involved in the Scottish agricultural tenancy regime, considered by the Supreme Court in Salvesen. Above all, the landowner had the opportunity to prevent the right to registration arising at all, by preventing the use from continuing, or continuing as of right, before the end of the 20 year period. It was not unreasonable not to give the landowner a further opportunity, enabling it to avoid the consequences of having not prevented use as of right to continue for twenty years.
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