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February 28 2013.

Newhaven Town Councillor Carla Butler reports from the second day of the Appeal in London yesterday:

Day Two
Today's arguments were dominated by NPP's QC Mr George who spoke all morning and much of the afternoon outlining the reasons why he felt the beach should not be registered as a village green. These were all points that had been considered at both the public inquiry and at the judicial review, and were rejected there as reasons for not registering the beach. Mr George of course feels that both the inspector and the judge at the judicial review were mistaken and is hoping that the appeal judges will agree with him.

The six arguments put forward were:

1. That a village green should be covered by grass. Mr George quoted at length from various Victorian authors who had described traditional village greens and also took the court through various early draft definitions that had been considered when the original village green legislation was being created in 1965 which had included words like "covered in turf" and "surrounded by houses". It was hard for Mr George to get away from the fact that these definitions had however been rejected from the final legislation. He tried very hard however to convince the judges that it could not have been the governments intention in 1965 that beaches could be registered. One judge did point out to Mr George that Parliament has had the opportunity to amend legislation since or give direction if the interpretation by judges had been incorrect.

2. That the beach has no fixed boundary because variable amounts of it are exposed at any given time according to the state of the tide. (A village green has to have a boundary which is marked in a map accompanying the application. In our case we used the mean low water mark as shown on a dated ordnance survey map).

3. That the use of the foreshore (the area between the high water and low water marks) is always by consent, rather than as of right. This is because in most cases (but not ours) the foreshore is owned by the Crown which is traditionally held to have given the people of England permission to use it. Mr George argued that this situation is inherited by a private landlord if the foreshore passes to him or her from the Crown.

4. That there could not have been sufficient use of the whole of the beach for recreation because "most of the beach is covered by the tide for most of the time".

5. That the fact that byelaws for the port exist means that people have been given a sort of special statutory implied permission to go on the beach and this applies even though the bye laws were never brought to anyone's attention by notices (both the inspector and the judge at the judicial review felt that there had to be notices displayed for this to apply).

6. That there was no right of way to the beach. This would lead to the absurd situation where there could be a village green, access to which could be cut off by the landowner. This argument was made by NPP's barrister, Mr Pechey.

Newhaven Town council made an application to ESCC for a right of way to Newhaven West Beach in October 2011. The Town Council's application was to amend the Definitive Map to show the right of way along the promenade as extending the full width of the promenade to the top of the steps to the sandy beach, as it did in the original Definitive Map produced in the 1950s. ESCC today announced an officers recommendation in favour of Newhaven Town Council application for right of way. This information was delivered to Mr Pechey shortly before he made the 6th point, so when giving his argument, he eventually admitted this fact to the judges.

The judges then left the court to confer for a few minutes. When they returned they announced that they only wanted to hear counter arguments from ESCC and NTC on two points - 3. about the foreshore and 5. about the byelaws. This I hope means good news about the other points.

Mr Sauvain, QC for ESCC will speak first tomorrow followed by the Town Council's QC Mr Laurence. The case is expected to finish tomorrow but the result will not be known for sometime. The judges will go away and consider their verdict.

Cllr Carla Butler
07876 162395