No bathing on Jarndyce Beach?

Unlike Dickens’ famous case of Jarndyce v Jarndyce, which lasted many generations, the legal saga of Newhaven West Beach only began seven years ago when the beach was closed to the public by its owners, Newhaven Port and Properties Ltd (“NPP”). NPP operates Newhaven Harbour under statutory powers. Public use of West Beach for bathing and other beach activities began before the First World War. Newhaven Town Council responded to the closure by applying to have the beach registered as a town or village green (“TVG”). Having held an inquiry, East Sussex County Council followed the Inspector’s recommendation and decided to register West Beach as a TVG. On Wednesday 25 February 2015 – one judicial review application and two (arguably two and half) appeals later – the Supreme Court has finally decided that West Beach ought not to be registered as a TVG.

Three very significant legal issues were involved, of which only two were decided.

  1. Did the public enjoy an implied licence arising from NPP’s byelaws so that public use was not “as of right”? For the TVG application to succeed, use by the inhabitants of Newhaven had to be without permission from NPP and its predecessors. Harbour byelaws made in 1931 forbade bathing and certain other activities in particular parts of the harbour. The Supreme Court accepted that these implied that bathing was permitted in other parts, including West Beach. That implied permission was sufficient to prevent registration of the beach as a TVG.
  2. Can land be registered as a TVG, if registration is incompatible with a statutory function carried out on the land? Having decided the implied permission point, it was technically unnecessary for the Supreme Court to decide this issue, but decide it the Court did – in favour of NPP. Their Lordships decided that registration as a TVG would make it a criminal offence for NPP to damage the TVG or interrupt its use as a place for exercise and recreation. That would be incompatible with the use of Newhaven Harbour as a working harbour.

Clearly this second limb of the Newhaven decision will be a lot of help to local authorities and others carrying out statutory functions in cases where incompatibility arises.

The third issue was this. “What is the legal status of people bathing on the foreshore (i.e. the seabed/beach between the high and low water marks) who don’t have the owner’s express permission?” According to the Supreme Court, there are three possible answers in law.

  1. There may be a general common law right for the public to use the foreshore for bathing.
  2. The common law may presume the foreshore owner has permitted the public bathing until the owner publicly revokes that implied permission.
  3. Anyone bathing on the foreshore without express permission is a trespasser.

However all five Supreme Court found this topic so difficult that they unanimously deferred the decision as to which, if any, of these three answers is correct to another occasion. It is surprising that on such a small and crowded island there isn’t an obvious answer to this either in statute or in the common law.

The nearest thing there is to a leading case, Blundell v Catterall, decided in 1821, concerned bathing machines operated as a business on the foreshore of the River Mersey. It has been much criticised and judges have often found reasons not to follow it.

One of the complications is that English law clearly does not yet provide a public general right over land above the high tide mark to reach the foreshore below the high water mark, whether for bathing or any other lawful purpose. A common law right to bathe on the foreshore would be of little use with out a right to get there.

In most places the creation of the English Coastal Path under the Marine and Coastal Access Act 2009 will solve this problem once its objective of providing a public path all the way round the English coastline has been achieved. Members of the public, exercising their statutory “coastal access rights” have access not only over the path itself but also the adjoining “spreading land”. Spreading land, for this purpose, includes the foreshore. Coastal access rights permit “open–air recreation” which is not itself defined, except, in reverse, by Schedule 2 of the Countryside and Rights of Way Act 2000. This lists prohibited activities, including bathing in non-tidal waters; which very strongly suggests that bathing in waters over the foreshore, which are by definition tidal, is within the public’s coastal access rights.

Sea bathers have cause therefore to be grateful that last September, the Coalition Government announced extra funding to enable the creation of the English Coastal Path to be completed by 2020.