"1. Newhaven is a port town at the mouth of the River Ouse in East Sussex. In 1883, a breakwater was constructed to form the western boundary of the harbour. It extends just over 700m out to sea. The breakwater caused the accretion of sand on its eastern side; that area is now known as West Beach. To the north, the beach is bounded by a high sea wall, from which a pair of steps lead down to the beach. The sea wall is topped by a wide area of hard surfacing known as the Promenade, on which there is a car park. There is another set of steps down from the breakwater itself on to this beach. The beach is wholly covered by water at high tide; as the tide ebbs and flows, the beach becomes uncovered and covered to a greater or lesser extent, but still remains wholly covered by the sea for 42 per cent of every 25 hours 10 minutes of the full tidal cycle. It is wholly uncovered for only a few minutes each day. The area of the beach to mean low water mark is 6.07 ha (15 acres). 2. East Sussex County Council has decided to register West Beach as a town or village green under theCommons Act 2006 , for which it is the registration authority. That decision is the subject of this challenge. The County Council decided to register West Beach after receiving an application from Newhaven Town Council on18 December 2008 . That application was supported by significant evidence that West Beach had been used by local inhabitants as of right for lawful sports and pastimes for at least the twenty years expiring in April 2006. That was when the owner of West Beach, Newhaven Port and Properties Ltd, the Claimant, which owns and operates Newhaven Port, fenced off public access to West Beach. It also claims that the sea wall is in a condition which would make public access to its beach dangerous. 3. Newhaven Port ... objected to this application; it was the only objector. The Defendant County Council held a nonstatutory public local inquiry to hear the disputed evidence on user, and the legal arguments, many of which were deployed before me. It appointed Miss Ruth Stockley of Counsel, as the Inspector to report to the County Council with recommendations. She has great experience in this area of the law. After the inquiry in July 2010, she reported to the County Council with a reasoned recommendation that the application for registration be accepted. Newhaven Port was given the opportunity to comment on her report and recommendations before the County Council reached its decision. Newhaven Port did so in November 2010, which led to an addendum report from the Inspector. She did not change her mind. 4. On22 December 2010 , her reports and recommendation were reported to the County Council's Commons and Village Green Registration Panel, with an officer recommendation that the application be approved. That recommendation was accepted, which forms the decision being challenged. Registration has not yet taken place, because of this litigation."
"'town or village green' means land (a) which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or (b) on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or (c) on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."
"(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."
"15. Registration of greens (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. ... (4) This subsection applies ...
"As port authority, it has plans for the future development of the port: extending the outer harbour, widening and deepening the approach channel, creating a larger turning area for ships. This, it says, is likely to require works extending into the application area. It might want to reconfigure the breakwater to extend wave protection to the outer harbour, to replace the ageing breakwater and to deepen the application area to provide berths or turning areas for ships. It might want to permit boats to moor against the promenade wall. It gave evidence about its safety concerns and future plans to the Inspector. The registration of the area as a village green could prevent it exercising those powers, were that to interfere with the exercise of the recreational rights ...."
"143. ... If there is a likelihood, or if it is reasonably foreseeable, that the operational use of the port land would be compromised, the port operator would lack capacity to permit the recreational user to arise, or the power to abdicate its rights to use the land for the purposes of the statutory functions for which it was leased. The decision in BTC does not permit the decision on registration to wait and see what conflicts there are, not knowing how they are to be resolved. 144. The land could only be registered now, conformably with BTC, if it were clear that the future conflicts would be resolved in favour of the retention by the port authority of its full powers for the operation of the statutory undertaking .... 145. I accept that the evidence of Newhaven Port given to the Inspector shows that conflict is likely in the future ... 146. ... The time horizon for reasonable foreseeability in this context is necessarily a long one since the question is whether the port authority has power or capacity consistent with its statutory functions, to grant rights over its land in that way. If it does grant such rights, as I understand the approach in BTC, the grant is permanent, rather than reversible under the undertaking's statutory powers. 147. For those reasons, and whether expressed as a question of statutory capacity or powers, or the unlawful fettering of its powers, Newhaven Port cannot permit the use of this land as of right for recreational purposes because it is reasonably foreseeable that that would conflict with its statutory functions. It has no power to give an actual or implied consent to this use, and appearances to the contrary, cannot be taken to have done so. There are other ways of putting it: rights cannot arise by twenty years user to the likely detriment of the statutory functions pursuant to which the landowner owns the land in the public interest. One group of the public cannot acquire rights against the general public interest measured by the existence of statutory powers which are reasonably foreseeably inconsistent with the rights they assert. 148. For that reason, no rights have been lawfully acquired or no use of the land carried on without a necessarily implied permission. The land cannot be registered as a village green."
"Any examination of this question must begin with the case of Rex v Inhabitants of Leake, which has been cited in many cases, some of them in this House, and never disapproved. The decision goes to the root of the matter, and, often as they have been cited, I think I should remind your Lordships of the words of Parke J in that case. 'If', he said, 'the land were vested by the Act of Parliament in commissioners, so that they were thereby bound to use it for a special purpose, incompatible with its public use as a highway, I should have thought that such trustees would have been incapable in point of law to make a dedication of it; but if such use by the public be not incompatible with the objects prescribed the Act, then I think it is clear that the commissioners have that power."
"Nothing in this section contained shall affect any incapacity of a corporation or other body or person in possession of land for public or statutory purposes to dedicate any such way where such way would be incompatible with such public or statutory purposes"
"I am of opinion that no such right can be maintained, and that on the same principle on which it has repeatedly been held that a railway company cannot voluntarily grant a right inconsistent with the performance of the purposes for which it has acquired its land. I assent entirely to the doctrine laid down by Lord Watson that the reference of the prescriptive right of way to an implied grant is a juridical speculation to account for an established rule, and not itself a rule of law. But at the same time I do not think it possible that a right of way which it would be ultra vires to grant can be lawfully acquired by user. The two elements which go to establish the right – the assertion of right on the one hand and the acquiescence of the landowner on the other are both excluded ex hypothesi. A landowner who has no power to grant has no power to acquiesce; and persons who may find it convenient to traverse a piece of ground which has been set aside by act of Parliament for specific statutory purposes cannot be presumed to be thereby asserting a right to override the statute, and to divert the land to other and incompatible purposes."
"Newhaven Port contends that a tidal beach cannot be registered as a town or village green, as a matter of statutory construction. It contends that a town or village green must be an area mainly of grass, in or on the edge of a town or village. That was what a town or village green was in popular parlance, the town or village playground. That was of the essence of what Parliament was making registrable, even though it had to be expressed as a more exact legal definition. A variety of dictionaries defined a 'village green' in such a way; the Oxford English Dictionary 1989, for example, defined it as 'a piece of public or common grassy land situated in or near a village ...'. It cannot have been Parliament's intention that all tidal beaches near a town or village, where they would be probably used for sports and pastimes, would be registrable under the 2006 Act. It was contrary to a sensible or common understanding of the words Parliament used for them to cover a tidal beach."
"38. My Lords, it is true that in construing a definition, one does not ignore the ordinary meaning of the word which Parliament has chosen to define. It is all part of the material available for use in the interpretative process. But there are several reasons why I think that it would be unwise for your Lordships, at any rate without full argument, to embark upon the process of introducing some elements of the traditional village green into the statutory definition. 39. First, your Lordships will observe that the question of whether the Trap Grounds [the land in issue in Oxfordshire] failed, by reason of their current character, to qualify as land capable of becoming a town or village green was not among the ten questions on which the parties sought rulings from the House. It was not discussed in any of the printed cases. Secondly, this is not surprising because there is no authority, either at common law or on earlier statutes which used the term 'village green', in which such a restricted meaning was applied. Thirdly, any restriction derived from the ordinary meaning of 'village green' must apply to all three limbs of the definition, but the Royal Commission plainly thought that all land with customary rights of recreation ... would fall within class b. Fourthly, Parliament must have been alerted to the width of the definition by the Royal Commission's proposed restriction for class c greens but chose to define them without restriction. Fifthly, even if Parliament had not noticed in 1965, the subsequent practice of the very learned commons commissioners and the courts would have shown how the definition operated .... Sixthly, Parliament in 2000 showed no unease at the way registration was operating. Seventhly, if Parliament thinks that the definition needs to be narrowed, it will have an immediate opportunity to do so. Eighthly, the terms of the proposed Auburn test would be inherently uncertain. To say that the registration authority will recognise a village green when it sees one seems inadequate."
"77. In my opinion, the 'something more' would have been a quality in the land in question that would have accorded with the normal understanding of the nature of a town or village green, namely, an area of land, consisting mainly of grass, either in or in reasonable proximity to a town or village and suitable for use by the local inhabitants for normal recreational activities."
"if Parliament thinks that the definition needs to be narrowed, it will have an immediate opportunity to do so"
"At present there is a Bill before Parliament dealing with some of the same subject matter. Again, it contains no measure to narrow the definition in section 22 so as to limit it to more 'traditional' village greens. But if, having taken account of your Lordships' speeches in the present appeal, Parliament wished to change the definition in this way, a suitable amendment could doubtless be introduced"
"40. Mr George made three points under this head: the ebb and flow of the tides meant that the area over which sports and pastimes could lawfully take place varied with the state of the tides; the seaward boundary, the mean low water mark itself, varied between mean low water Neaps and mean low water Spring tides, and indeed over time could vary more significantly. Although there was a fixed boundary line on the application, referable to mean low water, that did not answer the point that the fixed line and the boundary of the area used by local people were different. The boundary on the application map had to reflect the boundary of the recreational area on the ground, which could not be fixed."
"In some parts, the King is the owner of the shore; and it is not probable that any obstruction would be interposed on his behalf to such a practice. Of private owners, some may not have thought it worth while to advance any claim or opposition; others may have had too much discretion to put their title to the soil to the hazard of a trial by an unpopular claim to a matter of little value; others, and probably the greater part, may have derived or expected so much benefit from the increased value given to their own land above by the erection of houses and the resort of company, that their own interest may have induced them to acquiesce in, and even to encourage the practice, as a matter indirectly profitable to themselves."
"I think what is thus said of the King may with equal truth be said of those subjects of the King to whom beds of navigable rivers have been granted. At any rate I am satisfied in the present case that the defendant's sport would never have been interfered with had he not persistently asserted a right to shoot."
"It is, on the other hand, notorious that in many and indeed most places the use of the foreshore by the public for purposes of recreation and bathing is tolerated. For instance, it appears by the lease of 1934 already recited that on the foreshore here in question the Crown reserves for its licensees (which word is defined so that it means all persons not expressly forbidden) the comparatively extensive rights there specified, namely, to ride, drive, walk or pass over and fish and bathe and gather seaweed and land and embark goods from boats. It seems clear that all these enumerated acts when done by members of the public are done by licence of the Crown and not under a claim of right. Why, then, it may be asked, should the further privilege of taking away coal be treated as of right rather than as a matter of permission?"
"The topic of tolerance has bulked fairly large in recent decisions of this court dealing with claims to prescriptive rights, since the decision in Alfred F Beckett Ltd v Lyons[1967] Ch 449 . If passages in successive judgments are taken on their own out of context and added together, it would be easy to say ... that there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement in the particular manner for the appropriate number of years has been tolerated without objection by the servient owner. But there cannot be any such principle of law because it is, with rights of way, fundamentally inconsistent with the whole notion of acquisition of rights by prescription. It is difficult to see how, if there is such a principle, there could ever be a prescriptive right of way. It follows that the various passages in the judgments in question cannot be taken on their own out of context. If each case is looked at on its own and regarded as a whole, none lays down any such far-reaching principle."
"It seems clear ... that the judge in the instant case failed to recognise the very limited circumstances in which the word 'toleration' has been used in the cases cited which might be summarised as relating to the exercise of a purported right which was casual or trivial or in respect of which some form of consent for the user was established so that acquiescence did not arise."
"As one can see from the law of public rights of way before 1932, toleration is not inconsistent with user as of right: see also per Dillon LJ in Mills v Silver[1991] Ch 271 , 281. When proof of a public right of way required a finding of actual dedication, the jury were entitled to find that such user was referable to toleration rather than dedication: Folkestone Corporation v Brockman[1914] AC 338 . But this did not mean that the user had not been as of right. The purpose of the Act of 1932 was to make it unnecessary to infer an actual dedication and, in the absence of specific rebutting evidence, to treat user as of right as sufficient to establish the public right. Alfred F Beckett Ltd v Lyons[1967] Ch 449 , in which the court was invited to infer an ancient grant to the Prince Bishop of Durham, in trust for the inhabitants of the country, of the right to gather coal on the sea-shore, was another case in which the question was whether an actual grant could be inferred. One of the reasons given by the Court of Appeal for rejecting the claim was that the coal gathering which had taken place could be referable to tolerance on the part of the Crown as owner of the sea-shore. But the establishment of a class c village green does not require the inference of any grant or dedication ...."
"6.33 Fifthly, and particularly significantly, as the Land comprises a tidal beach, it is not available for lawful land-based activities for significant periods dependent upon the state of the tide. The unchallenged expert evidence of Mr Marks was that, on average, the Land is completely uncovered by water for 42% of the time and is uncovered to some extent for 58% of the time. It is only completely uncovered for a few minutes. Putting that into actual times, he indicated that the average period of time between low tide to when the Land is covered by water is 3.6 hours. It is then a similar 3.6 hour period between the Land being first uncovered to low tide. The tidal cycle from high tide to high tide or from low tide to low tide is approximately 12 hours and 35 minutes. Therefore, in round terms, in every 12½ hour tidal cycle, the land is uncovered to some extent for 7¼ hours and is completely covered for 5¼ hours. Given the water-based activities are not lawful sports and pastimes, the Land is not usable for lawful sports and pastimes for around 5¼ hours in every tidal cycle then is usable to variable extents for around 7¼ hours. 6.34 Sixthly, and linked to the above, an effect of the tidal cycle is that parts of the Land, namely those parts nearest to the mean low water mark, would not be usable for the majority of the time for lawful sports and pastimes as they would only be available for a limited part of each 7¼ hours of each tidal cycle to a decreasing extent the nearer the area was to the mean low water mark."
"6.39 ... In considering that evidence, the fundamental issue remains whether, in the light of such circumstances, the use of the Land was of such a nature that it would show to a landowner that rights were being asserted. Although the Land was only available for use for a maximum of 58% of the time, gradually reducing towards the mean low water mark, as there are just short of two tidal cycles in every 24 hours, the Land was nonetheless available for use for land-based recreational activities for a material period of time each day. Further, I note the evidence that local people tended to be aware of the times of the tides and so knew when the Land would be available for such uses. My impression of the evidence was that although the Land was not available for such uses for material periods, its use at other times was of such a nature and with such regularity that it was sufficient to indicate to a landowner that rights were being asserted. The mere fact that, due to natural causes, the Land was not available for lawful sports and pastimes for material periods of time would not seem to me to be a reason in itself for the Land being incapable of registration. 6.40 Further, I recognise that some parts of the Land were unavailable for use for lawful sports and pastimes for substantial periods in that they are covered by water for the majority of the time. Nonetheless, it seems to me that it is necessary to apply the same consideration, namely whether the use of the land as a whole was of such a nature and extent that it would show to a landowner that rights were being asserted over the Land as a whole. In that regard, I accept the unchallenged evidence of users that the Land was used generally. It was evident that if users went to the Land to sit and/or sunbathe, they would generally seek to find a spot close to the harbour wall if possible as that would be available for the longest period before the tide covered that area. However, if those areas were not available other areas would be used .... Moreover, for the more active pursuits, the area seems to have been used generally, such as for dog walking, beach games and kite flying. It therefore appears to me that the Land in its entirety has been used for lawful sports and pastimes, albeit some areas have been used more frequently than others, namely those areas closest to the harbour wall. Nonetheless, the impression I gained from the user evidence was that when it was available, the area of the Beach that was uncovered by water was used for lawful sports and pastimes. Further, it seems to me that the use was such that it would have been apparent to a landowner that the Beach as a whole was used for lawful sports and pastimes as and when it was uncovered."
"88. The said Bye Laws when confirmed shall be published in the prescribed Manner, and when no Manner of Publication is prescribed they shall be printed; and the Clerk to the Undertakers shall deliver a printed Copy thereof to every Person applying for the same without Charge; and a Copy thereof shall be painted or placed on Boards, and put up in some conspicuous Part of the Office of the Undertakers, and also on some conspicuous Part of the Harbour, Dock, or Pier, and such Boards, with the Bye Laws thereon, shall be renewed from Time to Time, as Occasion shall require, and shall be open to Inspections without Fee or Reward .... 89. All Bye Laws made and confirmed according to the Provisions of this and the special Act, when so published and put up, shall be binding upon and be observed by all Parties, and shall be sufficient to justify all Persons acting under the same."
"68. No person, without the permission of the Harbour Master, shall fish in the harbour; and no person shall bathe in that part of the harbour which lies between Horse Shoe Sluice and an imaginary line drawn from the East Pier Lighthouse and the Breakwater Lighthouse. ... 70. No person shall engage in or play any sport or game so as to obstruct or impede the use of the harbour, or any part thereof, or any person thereon; nor (except in case of necessity or emergency) shall any person, without the consent of the Harbour Master, wilfully do any act thereon, which may cause danger or risk of danger to any other person. 71. No person shall bring any dog within the harbour, or permit it to be within the harbour, unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control."
"In practice it will normally be sufficient for those claiming the existence of a public right of way to establish that they enjoyed it for the requisite period in the belief that they were doing so as of right. They do not have to prove in every case that they were using the way without permission if that issue is not raised, but if the landowner establishes that their use was in fact with permission, that will defeat the claim that their use was as of right. ... It follows that, on the admittedly limited information contained in the decision letter, the users of the tracks on Ranmore Common were doing what they were permitted to do under section 193 by virtue of the deed, and no more. Their enjoyment of the ways was by licence and not as of right, even though they genuinely believed that it was as of right."
"9. ... After the House had reserved judgment at the conclusion of oral argument, however, the House became concerned to explore the possibility that, on the special facts of this case, the inhabitants of the locality might have indulged in lawful sports and pastimes for the qualifying period of 20 years or more not 'as of right' but pursuant to a statutory right to do so. Such use would be inconsistent with use as of right. Counsel were invited to make written submissions on the point, which had not been raised or investigated below, and the House heard further oral argument on it. The House is grateful to counsel for responding so fully to its invitation, and consideration has been given to every statutory provision which appeared to be potentially relevant. In the event, I do not find it necessary to review these provisions in detail since it is to my mind clear that none of them, on the facts found or agreed, can be relied on to confer on the local inhabitants a legal right to sue the land for indulgence in lawful sports and pastimes."
"87. After that approach had been suggested there was a further hearing of this appeal in order to consider the effect of various statutory provisions which were not referred to at the first hearing .... Where land is vested in a local authority on a statutory trust undersection 10 of the Open Spaces Act 1906 , inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers). The position would be the same if there were no statutory trust in the strict sense, but land had been appropriate for the purpose of public recreation. 88. Those situations would raise difficult issues but in my opinion they do not have to be decided by your Lordships on this appeal, and would be better left for another occasion. The undisputed evidence does not establish, or give grounds for inferring, any statutory trust of the land or any appropriation of the land as recreational open space. Counsel for Sunderland rightly did not argue for some general implied exclusion of local authorities from the scope ofsection 22 of the Commons Registration Act 1965 ."
"The Field was 'appropriated for the purpose of public recreation' by the UDC and its successor the Borough Council under an express statutory power to provide and thereafter maintain it as a recreation ground. Throughout the 20 year period the local inhabitants indulged in lawful sports and pastimes on the Field by right and not as of right."
"6.90 In those circumstances, I must consider the Application on the basis that there is currently no definitive public right of way to the Land. The effect of that is that unless and until such a public right of access is established, access to the Land could be prevented even [if] it was registered as a town or village green. However, that does not seem to me to be a reason to reject the Application. Registration of the Land should occur if all the relevant statutory criteria are met. The requirement for a public means of access to the Land is not one of those criteria. It would be inappropriate for me to imply a further requirement into the statutory criteria and I do not do so. Therefore, although such circumstances could result in practical difficulties in the exercise of rights over the Land if it were registered, they are not, in my view, a justifiable basis on which to reject the Application."
"163. ... The Claimant's arguments relate the alleged absence of or uncertainty over rights of access to the asserted rights of recreational uses. The absence of a right of access, it says, evidences the absence of any rights of use. Such uses can simply be terminated. In the absence of access rights and an intention to dedicate, the use of the access and hence of the land must be permissive. In the absence of certainty as to the right of access, there could be no sufficient certainty as to the right of recreational use. Of course, if it had been established that rights of access existed over the promenade to the steps down to the beach this argument could not have been mounted. Indeed the existence of such rights would have been strong supporting evidence for the rights of recreational use. 164. If it had been established that no rights of access to the beach existed, that would have been strong evidence that no rights of recreational use exists, but it would not have been determinative. The requirements in relation to rights of way, ins.31 of the Highways Act 1980 , are that there be both twenty years use as of right and an absence of intention to dedicate [by which the judge plainly meant an absence of sufficient evidence that there was no intention to dedicate]. Use as of right introduces the same test as for recreational use. The negative requirement of a proven absence of intention to dedicate is additional. Use as of right could be proven for both, even if the highway were proven not to have been dedicated. So the proven absence of a highway, and more so the absence of a proven highway could not show the recreational use to have been otherwise than by right. 165. The real issue, in my judgment, is whether on the facts found, the County Council was bound to refuse to register or to defer the decision until certainty over the existence of the rights of access had been reached, one way or the other. 166. The County Council was not in my view barred from registering the land. The Inspector considered the evidence of actual recreational use and of use of the promenade to access the beach. There was nothing in the evidence of the use of the promenade to contradict her conclusion about use of the beach, for example by appropriate signs, occasional fencing off, communicated byelaws, or access from the sea for most users. As I have said, the absence of a proven highway, or even proof of an intention not to dedicate, cannot show the recreational user not to have been of right."
"The little patches [which] adjoin a town or hamlet and are used in the nature of easements by the inhabitants."
"by the common law of England, all the King's subjects had a right, not only to traverse the ocean itself in every direction, as well for commerce, trade, and intercourse, as for every other lawful purpose; but, also, that they had a general public right of way over the sea-shore to and from the sea, and that they had it, as well during the recess as during the flux of the tide, for all lawful purposes; and that the King could not grant the shore so as to supersede or to deprive the public of the exercise of that right over the sea-shore."
"Where the soil remains the King's, and where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right, it is not to be supposed that an unnecessary and injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriæ. Where there is, and has hitherto been, a necessity, or even urgency, for such a right, it must, or most probably will have, usage and custom in the place to support, regulate, limit, and modify it; for, whenever there has been a necessity for it, there, as far as such necessity has existed, some usage must have prevailed."
"Another topic relied upon by the defendant was usage and practice.... In some parts, the King is the owner of the shore; and it is not probable that any obstruction would be interposed on his behalf to such a practice. Of private owners, some may not have thought it worth while to advance any claim or opposition; others may have had too much discretion to put their title to the soil to the hazard of a trial by an unpopular claim to a matter of little value; others, and probably the greater part, may have derived or expected so much benefit from the increased value given to their own land above by the erection of houses and the resort of company, that their own interest may have induced them to acquiesce in, and even to encourage the practice, as a matter indirectly profitable to themselves. But, further, the practice, as far at least as I am acquainted with it, differs in degree only, and not in kind or quality, from that which prevails as to some inland wastes and commons; and even the difference in degree is, in some instances, not very great. Many of those persons who reside in the vicinity of wastes and commons, walk or ride on horseback, in all directions, over them, for their health and recreation; and sometimes, even in carriages, deviate from public paths into those parts which may be so traversed with safety. In the neighbourhood of some frequented watering-places, this practice prevails to a very great degree; yet no one ever thought that any right existed in favour of this enjoyment, or that any justification could be pleaded to an action at the suit of the owner of the soil."
"It is, however, contended on the part of the plaintiffs that they are entitled as lessees to the possession of the foreshore, and that the public have no right at common law to enter upon the shore, when dry, except for the purposes of navigation or fishing. I think I am bound by the decision of the majority of the judges of the Court of King's Bench in 1821, in Blundell v Catterall, to hold that, in strict law, this proposition is well founded. The public are not entitled to cross the shore even for purposes of bathing or amusement. The sands on the seashore are not to be regarded as, in the full sense of the word, a highway. A more extensive right may possibly have been gained by prescription or by custom either by individuals or by the permanent or temporary inhabitants of Llandudno; but the existence of this more extensive right must be proved, and will not be presumed in the absence of proof. The plaintiffs have, therefore, primâ facie a right to treat every bather, every nursemaid with a perambulator, every boy riding a donkey, and every preacher, on the shore at Llandudno as a trespasser. In the present case there is no evidence from which I can find the existence of a legal usage or custom entitling the defendant to deliver sermons or addresses on the shore at Llandudno."
"I feel bound to say that I consider this action wholly unnecessary, and one which ought not to have been brought. It is no part of the duty of the council, as lessees from the Crown for an unexpired term of two years, to prevent a harmless user of the shore. There are persons who derive satisfaction from listening to the addresses of the defendant, and the defendant derives satisfaction from delivering these addresses. I cannot conceive why they should be deprived of this innocent pleasure. Nobody is obliged to listen. Nobody is molested. This action is an attempt to assert rights which the Crown would never have thought of putting forward, and which are in no way necessary for the peace and good order of the town of Llandudno. Charges have been made against the defendant in the pleadings and in the evidence for which there is no justification. I cannot refuse to make a declaration that the defendant is not entitled, without the consent of the plaintiffs, to hold meetings or deliver addresses, lectures, or sermons on any part of the foreshore in lease from the Crown. But I decline to go further. I decline to grant an injunction. That is a formidable legal weapon which ought to be reserved for less trivial occasions."
"In permitting persons to stray along the cliff edge or wander down the cliff face or stroll along the foreshore the owner of the land was permitting that which was no injury to him and whose refusal would have been a churlish and unreasonable act on his part. From such a user nothing, I think, is to be inferred. If it were otherwise, a landowner would be compelled to prohibit such user as this lest at some future time, when perhaps the cliffs now practically deserted may become the site of a place like Bude, Cromer, or Bournemouth, he should be told that he could not lay out his estate as he was minded because rights of highway existed which precluded him from so doing."
"It would, in my judgment, be a disastrous thing, not for the public only, but for the landowners also, if this Court, at the caprice of the landowner, not because circumstances have altered, but merely because he was minded that it should be so, entertained every trivial application to restrain persons by injunction from using paths which, though not public highways, have in fact been used by the permission of the owners for many generations, and whose user is no injury to the owner of the land. The landowner, if he be wise, will rather erect upon the road or path a notice expressive of permission or even of invitation to persons who make use of the way so long as they conduct themselves in an orderly and reasonable manner."
"...it is sufficient to say that the Crown holds the foreshore upon the terms that it must recognise the jus publicum, whatever it may be, over the foreshore, and do nothing inconsistent with that jus. This jus, as regards the rights of navigation and of fishing—the right to use the foreshore for those purposes—has a great deal of authority to support it, but except as regards those rights, and in so far as any act of the Crown would defeat those rights, the Crown has the beneficial ownership of the foreshore, and a private person, such as the present plaintiffs, would stand in the same position."
"... in this case the privilege of walking on the beach and taking things from it is explicable as an implied permanent licence, a practice tolerated by the Crown as owner of the foreshore, because it was on so small a scale that it did no harm." "
"It is notorious that many things are done on the sea-shore by the public which they have no legal right to do. The only clear right of the public on the foreshore is the right to pass over it in boats when it is covered with water for the purpose of fishing. Bathing, for instance, is not a public right but goes on by tolerance: see Brinckman v Matley, a decision of the Court of Appeal following Blundell v Catterall. I cannot find any clear decision that the public has the right to walk on the foreshore when the tide is out, nor of landing from boats or embarking except in cases of emergency. It seems also clear enough that there is no public highway along the foreshore. It is, on the other hand, notorious that in many and indeed most places the use of the foreshore by the public for purposes of recreation and bathing is tolerated. For instance, it appears by the lease of 1934 already recited that on the foreshore here in question the Crown reserves for its licensees (which word is defined so that it means all persons not expressly forbidden) the comparatively extensive rights there specified, namely, to ride, drive, walk or pass over and fish and bathe and gather seaweed and land and embark goods from boats. It seems clear that all these enumerated acts when done by members of the public are done by licence of the Crown and not under a claim of right. Why, then, it may be asked, should the further privilege of taking away coal be treated as a right rather than as a matter of permission?" (Emphasis added)
"In other words, if you push a privilege into a right you will find it opposed, which it never would be so long as you admit that it is a privilege."
"It is a well-known aspect of English law that in relation to the foreshore a great many activities have been generally tolerated without giving rise to any legal right to continue them. It has never been established in English law that beachcombing can give rise to a legal right to frequent the foreshore for the purpose of beachcombing or require a presumption of a legal origin: and the early evidence in this case to my mind amounts to no more than beachcombing."
"But in the context of Alfred F Beckett Ltd v Lyons as a whole, I take the decision to come down to this, that it is well known that public rights in law over the foreshore are very limited and that everything else done on the foreshore is by tolerance or licence of the Crown; therefore no one can have supposed that he was exercising a public right when picking up coal or otherwise beachcombing on the foreshore. In that sense, tolerance was a sufficient explanation."
"It seems clear ... that the judge in the instant case failed to recognise the very limited circumstances in which the word 'toleration' has been used in the cases cited which might be summarised as relating to the exercise of a purported right which was casual or trivial or in respect of which some form of consent for the user was established so that acquiescence did not arise."
"Alfred F Beckett Ltd v Lyons ... in which the court was invited to infer an ancient grant to the Prince Bishop of Durham, in trust for the inhabitants of the county, of the right to gather coal on the sea-shore, was another case in which the question was whether an actual grant could be inferred. One of the reasons given by the Court of Appeal for rejecting the claim was that the coal gathering which had taken place could be referable to tolerance on the part of the Crown as owner of the sea-shore. But the establishment of a class c village green does not require the inference of any grant or dedication."
"All Bye Laws made and confirmed according to the Provisions of this and the special Act, when so published and put up, shall be binding upon and be observed by all Parties, and shall be sufficient to justify all Persons acting under the same."
"68. No person, without the permission of the Harbour Master, shall fish in the harbour; and no person shall bathe in that part of the harbour which lies between Horse Shoe Sluice and an imaginary line drawn from the East Pier Lighthouse and the Breakwater Lighthouse. 70. No person shall engage in or play any sport or game so as to obstruct or impede the use of the harbour, or any part thereof, or any person thereon; nor (except in case of necessity or emergency) shall any person, without the consent of the harbour Master, wilfully do any act thereon, which may cause danger of risk of danger to any other person. 71. No person shall bring any dog within the harbour, or permit it to be within the harbour, unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control."