NEWHAVEN WEST BEACH APPEAL - DAY THREE
March 1 2013.
Newhaven Town Councillor Carla Butler reports from the third and final day of the Appeal in London yesterday:
The third day of the appeal was the day for East Sussex County Council and Newhaven Town Council to put forward their arguments in response to the two issues raised by NPP which the judges thought worthy of further consideration.
ESCC's QC went first, addressing the issue of there being an alleged special status for the foreshore and arguing against what had been said by NPP's QC on day two.
At one point one of the judges asked why there hadn't been lots of other applications to register areas of foreshore as village greens, or to assert other rights on the foreshore. Mr Sauvain said with great eloquence that the reason for this was that communities do not tend to go to court to uphold their rights unless those rights are taken away from them. In this case the rights enjoyed by generations of people from Newhaven to go on the beach had been taken away from them by the closure of the beach. The Crown owns most of the foreshore around the country (but not the sandy West Beach at Newhaven) and the Crown usually does not prevent people from going on the foreshore.
In his argument on day two, NPP's QC had stated that the bye laws governing the beach could be seen as giving people permission to go on the beach because they did not specifically prohibit people from doing so. Mr Sauvain pointed out that this idea was potentially absurd. If you created a bye law, for instance saying that people could not drink alcohol on a particular piece of land did this mean that in effect you were giving them permission to do absolutely anything else on the land that they wanted?
Next it was our QC's turn. He took the judges through a detailed argument supplementing and supporting what had been said by ESCC's QC in relation to the foreshore.
So far as the bye laws are concerned Newhaven Town Council's QC threw some doubt on whether the bye laws were in fact valid at all due to the fact that they had not been displayed during the 20 year period that applied for the purposes of the village green application (legislation which was in force up until 1993 apparently stated that bye laws were only valid if they were displayed).
In case this argument was not accepted by the judges Mr Laurence went on to argue that it was plainly absurd to suggest that a bye law that was not communicated to the public - for instance saying that they could not swim off the beach - could be understood by anyone as giving them permission to do anything other than swimming. An implied permission could only be implied by the exact wording of the bye law and if no-one knew what the bye law actually said (or even if it existed) then they couldn't be expected to understand the implication.
So far as the idea that the bye laws conferred a special sort of statutory permission was concerned, Mr Laurence pointed out that the case which NPP's solicitor had used to justify this idea actually related to a clause in a housing act which specifically gave people a right of access - not to a right that had to be implied because it was not prohibited.
After lunch NPP's QC had a chance to reply. He basically reiterated 2 or 3 of his points without saying anything new.
So - It's all over now and we have to wait and see what the verdict is. This is expected to take some weeks.
I would just personally add that it is a great shame we have had to be in court at all, and hope whatever the outcome NPP, (in particular decision makers in France), can work with parties involved to secure access to our sandy beach.
Cllr Carla Butler