House of Commons

London

SW1A 0AA

Village Green rights vs Coastal Defence duties: ironing out the wrinkles

Dear ,

I am working with my local Council and a local MP to resolve a problem facing a number of

coastal constituencies. I am writing to you because you represent a coastal constituency. I

hope that you will be able to lend your support to what we are trying to do.

The problem arises when land that is part of a coastal defence is also a village green. There

is potential for conflict between coastal defence legislation and village green legislation. In a

nutshell, the public cannot be denied access to a village green. Moreover, Victorian

legislation prevents any work from being carried out on a village green unless it is for the

“better enjoyment” of the green. In contrast, a local authority or other landowner may need to

undertake coastal defence work on a coastal village green that would exclude the public

from it on health and safety grounds whilst the work is being carried out, or that would

change the nature of the green, or even reduce it in size. The village green legislation is

clear that changes are allowed only if they result in "the better enjoyment" of the green. It is

less clear whether sacrificing some percentage of a green in order to preserve the rest from

the encroachment of the sea would count as "better enjoyment".

This presents coastal local authorities and landowners with a problem. In the case of my

local authority, Canterbury City Council, the Council already has a number of beach or

coastal village greens that also form part of the local sea defences. In addition, there are

applications to register new village greens that are also used as coast protection land. The

Council is sympathetic to the idea of village green status but is understandably anxious that,

if it carries out coast defence work on registered village greens, it could fall foul of the

Victorian legislation that protects village greens. The Council is now facing the prospect of

trying to get its coastal village greens de-registered. It knows that this will be deeply

unpopular with local residents and that it could have a long and expensive legal struggle

ahead.

The conflict between the two bodies of legislation could easily be resolved by a small

amendment to the Victorian statutes that protect village greens, making an explicit exception

for coastal defence works. I am told that this would be a straightforward exercise for the

parliamentary draftsmen, and that it would be sensible and expedient to complete it before

all their energies are absorbed in the Great Repeal Bill. Similarly, it would be prudent to

secure a little bit of parliamentary time to rubber-stamp the amendment before parliamentary

business becomes hectic.

Canterbury City Council’s Leader (Cllr Simon Cook) and Chief Executive (Colin Carmichael)

recognise that the law needs to be amended. They sought the help of Sir Julian Brazier MP

and he has since raised the issue with Thérèse Coffey at Defra. I implore you to add your

voice to his, and ask that the required amendment be drafted, tabled and passed.

I have enclosed Mr Carmichael's letter to Sir Julian, as it is a clear exposition of the local

position and the wider context. I have also enclosed a copy of Sir Julian's recent article in

the local press – it was unfortunately curtailed by a careless sub-editor, doubtless Sir Julian

will be able to complete the punchline for you.

I have written to each of the MPs in England and Wales who represent coastal

constituencies. If I've missed anyone out, please let me know.

Do feel free to contact me if there is any further background or information you need. If you

wish to support this move, it would probably be quickest and easiest to contact Sir Julian

directly, but I am perfectly happy to collate and forward any replies that come to me.

Many thanks for your attention and, hopefully, your help.

Yours sincerely,

Phil Rose

07970 405678

PhilRoseOnline@gmail.com

56 Beacon Hill, Herne Bay, Kent CT6 6JN

The coastal constituency MPs I have written to, listed clockwise, starting in the north-east:

Berwick-Upon-Tweed (Anne-Marie Trevelyan); Wansbeck (Ian Lavery); Blyth Valley (Ronnie

Campbell); Tynemouth (Alan Campbell); South Shields (Emma Lewell-Buck); Sunderland

Central (Julie Elliott); Easington (Grahame Morris); Hartlepool (Iain Wright); Redcar (Anna

Turley); Middlesbrough South and East Cleveland (Tom Blenkinsop); Scarborough and

Whitby (Robert Goodwill); Thirsk and Malton (Kevin Hollinrake); East Yorkshire (Sir Greg

Knight); Beverley and Holderness (Graham Stuart); Great Grimsby (Melanie Onn);

Cleethorpes (Martin Vickers); Louth and Horncastle (Victoria Atkins); Boston and Skegness

(Matt Warman); South Holland and The Deepings (John Hayes); North West Norfolk (Sir

Henry Bellingham); North Norfolk (Norman Lamb); Great Yarmouth (Brandon Lewis);

Waveney (Peter Aldous); Suffolk Coastal (Dr Thérèse Coffey); Clacton (Douglas Carswell);

Harwich and North Essex (Bernard Jenkin); Witham (Priti Patel); Maldon (John

Whittingdale); Rochford and Southend East (James Duddridge); Southend West (Sir David

Amess); Castle Point (Rebecca Harris); Rochester and Strood (Kelly Tolhurst); Sittingbourne

and Sheppey (Gordon Henderson); Canterbury (Sir Julian Brazier); North Thanet (Sir Roger

Gale); South Thanet (Craig Mackinlay); Dover (Charlie Elphicke); Folkestone and Hythe

(Damian Collins); Hastings and Rye (Amber Rudd); Bexhill and Battle (Huw Merriman);

Eastbourne (Caroline Ansell); Lewes (Maria Caulfield); Brighton, Kemptown (Simon Kirby);

Brighton, Pavilion (Caroline Lucas); Hove (Peter Kyle); East Worthing and Shoreham (Tim

Loughton); Worthing West (Sir Peter Bottomley); Bognor Regis and Littlehampton (Nick

Gibb); Chichester (Andrew Tyrie); Havant (Alan Mak); Portsmouth South (Flick Drummond);

Gosport (Caroline Dinenage); Fareham (Suella Fernandes); New Forest East (Dr Julian

Lewis); New Forest West (Sir Desmond Swayne); Isle of Wight (Andrew Turner);

Christchurch (Christopher Chope); Bournemouth East (Tobias Ellwood); Bournemouth West

(Conor Burns); Poole (Robert Syms); South Dorset (Richard Drax); West Dorset (Sir Oliver

Letwin); Tiverton and Honiton (Neil Parish); East Devon (Sir Hugo Swire); Newton Abbot

(Anne Marie Morris); Torbay (Kevin Foster); Totnes (Dr Sarah Wollaston); South West

Devon (Gary Streeter); Plymouth, Sutton and Devonport (Oliver Colvile); South East

Cornwall (Sheryll Murray); St. Austell and Newquay (Steve Double); Truro and Falmouth

(Sarah Newton); Camborne and Redruth (George Eustice); St. Ives (Derek Thomas); North

Cornwall (Scott Mann); Torridge and West Devon (Geoffrey Cox); North Devon (Peter

Heaton-Jones); Bridgwater and West Somerset (Ian Liddell-Grainger); Wells (James

Heappey); Weston-Super-Mare (John Penrose); North Somerset (Dr Liam Fox); Bristol North

West (Charlotte Leslie); Filton and Bradley Stoke (Jack Lopresti); Thornbury and Yate (Luke

Hall); Stroud (Neil Carmichael); Forest of Dean (Mark Harper); Monmouth (David Davies);

Newport East (Jessica Morden); Newport West (Paul Flynn); Cardiff South and Penarth

(Stephen Doughty); Vale of Glamorgan (Alun Cairns); Bridgend (Madeleine Moon);

Aberavon (Stephen Kinnock); Swansea East (Carolyn Harris); Swansea West (Geraint

Davies); Gower (Byron Davies); Llanelli (Nia Griffith); Carmarthen West and South

Pembrokeshire (Simon Hart); Preseli Pembrokeshire (Stephen Crabb); Ceredigion (Mark

Williams); Dwyfor Meirionnydd (Liz Saville Roberts); Arfon (Hywel Williams); Ynys Mon

(Albert Owen); Aberconwy (Guto Bebb); Clwyd West (David Jones); Vale of Clwyd (Dr

James Davies); Delyn (David Hanson); Ellesmere Port and Neston (Justin Madders); Wirral

South (Alison McGovern); Wirral West (Margaret Greenwood); Wallasey (Angela Eagle);

Bootle (Peter Dowd); Sefton Central (Bill Esterson); Southport (John Pugh); South Ribble

(Seema Kennedy); Fylde (Mark Menzies); Blackpool South (Gordon Marsden); Blackpool

North and Cleveleys (Paul Maynard); Lancaster and Fleetwood (Catherine Smith);

Morecambe and Lunesdale (David Morris); Westmorland and Lonsdale (Tim Farron); Barrow

and Furness (John Woodcock); Copeland (Trudy Harrison); Workington (Sue Hayman).

Date: 15 January 2016 Your Ref: Our Ref: CX/AH Ask for: Direct dial: 01227 862082

E-mail: chief.executive@canterbury.gov.uk

Julian Brazier MP House of Commons London SW1A 0AA SENT BY E-MAIL

Dear Julian, I hope you are well. I write in support of the letter which you will have received from Cllr Ashley Clarke regarding the vexed issue of coastal village greens in the District of Canterbury. In a nutshell the problem is an apparently irreconcilable clash between two pieces of legislation - the Commons Act 2006 and the Coast Protection Act 1949. The background Canterbury has a 12 mile coast line stretching from Seasalter in the west to Reculver in the east. We currently have three cases where town and village green (TVG) applications have been made in respect of beaches within the District. These are Seasalter beach (already granted), Whitstable Beach and The Downs, Herne Bay. The beaches at Whitstable and Seasalter act as sea/flood defences for the land to the south. They are, contrary to public perception, entirely artificial and man made or engineered structures designed to prevent the ingress of the sea to low lying land. The “Downs” at Herne Bay as they are known are in fact a series of collapsed and unstable cliffs which the Council manages and maintains. The legal issues (as apart from factual/evidential matters) are essentially the same for all three cases, namely:

whether the right to use a beach/cliffs for leisure or recreation is a

right which the wider public can enjoy and;

whether the designation as a TVG would conflict with and inhibit the

carrying out of our coast protection functions.

Seasalter has already been granted TVG status, despite CCC’s objections. The two main issues referred to above were, it seems, not adequately canvassed at the public inquiry. To change this situation the Council would have to make an application for the TVG status to be revoked. This can be done under section 19 of the Commons Act 2006.

That leaves the other two cases: Whitstable Beach is listed for a public inquiry on 25th April 2016 and is expected to last for approximately two weeks. The Downs case has already been the subject of a public inquiry and the report of the inspector was published some time ago. KCC have indicated that they do not expect to re-convene the public inquiry to hear further evidence. We can surmise therefore that the next step will be that to refer the case to a Panel of Members. Counsel has been instructed on both of these cases and it is expected that the process will cost the Council many thousands of pounds in legal and related costs, as well as representing a considerable drain on officer time. The legal issues

1. Public Rights of access

To establish a village green the campaigners will need to establish that they have used the “land” for leisure and recreation “as of right” that is to say, in effect as trespassers without the permission of the owners (Whitstable Oyster Company) for over 20 years. In our view this is inapt. The Council’s view is that the public have a common law right of access to the seashore and cannot be trespassers. In other words the public (not just locals but visitors also) use the land “by right”. This would of course defeat their claim if the County Council (as registration authority) were to agree with us. 2. Conflict with our statutory functions

This is the main issue in respect of which we are asking for your help. The Council is the coast protection authority for our area. This is by virtue of s.1 (1) of the Coast Protection Act 1949.

A coast protection authority has power to carry out such coast protection work, whether within or outside its area, as may appear to it to be necessary or expedient for the protection of any land in its area. A coast protection authority may enter into an agreement with any other person for the carrying out by either party, on such terms as to payment or otherwise as may be specified in the agreement, of any coast protection work which the authority has power to carry out, and may acquire land.

However, these powers – which are set out in s.4 CPA 1949 - are subject to an important statutory limitation contained within s.4 (4) CPA 1949:

"S.4 (4) Without prejudice to the powers hereinafter conferred on coast protection authorities, the foregoing provisions of this section shall have effect only for the purpose of removing any limitation imposed by law on the capacity of such an authority by virtue of its constitution; and the said provisions shall not authorise any act or omission on the part of such an authority which apart from this section is actionable at the suit of any person on any ground other than such a limitation.”

If the beach at Whitstable and the cliffs at Herne Bay were to be registered as town or village greens then they would of course become protected areas of open space. This in turn would mean that CCC would be prevented from carrying out its coast protection function in these areas. This is because the works needed to be done would constitute criminal offences, as set out below. The Victorian Statutes

Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 are collectively known as the “Victorian Statutes”.

Section 12 of the Inclosure Act 1857 makes it an offence to:

wilfully to cause any injury or damage to any fence of any town or village green

wilfully to lead, drive or draw any cattle or other animal on a town or village green without lawful authority,

to lay any manure, soil, ashes, rubbish or any other matter or thing on a town or village green

to do any other act whatsoever (whether wilfully or not) to the injury of the land or which interrupts the use or enjoyment of a town or village green as a place for exercise and enjoyment.

The penalty is a fine not exceeding level 1 on the standard scale, plus repayment of the costs incurred in removing any manure, soil, ashes or rubbish etc. from the land.

Section 29 of the Commons Act 1876 deems the following acts to be a public nuisance:

an encroachment on a town or village green

inclosure of a town or village green

any erection on, disturbance or interference with or occupation of the soil of the town or village green which is made otherwise than for the better enjoyment of the green

A public nuisance is also a criminal offence at common law and may be prosecuted in the Magistrates’ Court.

There are two ways in which, I am advised that the Council’s function as coastal protection authority would be seriously impeded by registration of our beaches and cliffs as new town or village greens.

First, the works which we need to do would, sooner or later, inevitably infringe the Victorian Statutes. This is because while some works may arguably be for the benefit of those using the beach for recreation the principle aim of all of the works would be that of coastal protection.

The problem is that the Victorian Statutes do not admit of the possibility of doing works on a registered village green that are of wider public benefit rather than for the benefit of those who have a legal right to use the green. To take one example, the fencing off of a portion of Whitstable Beach by the Council to facilitate coastal protection works would constitute an offence under the 1876 Act. To take another, the re-profiling of the beach would probably constitute an offence under both the 1857 Act and the 1876 Act.

Another example might be the erection of any structure that does not benefit the users of the beach at all. The reduction in size or complete removal of Whitstable Beach or the regarding of the cliffs to a shallower and more stable slope speaks for itself. Of course, in some instances it might be possible to make a case that the coastal protection works are of benefit or some benefit to the users, but I doubt that this would be possible or convincing in every case. The Council is of the view that it is very clearly the case that sooner or later works would be required in circumstances which infringe the criminal law. There is nothing in the CPA 1949 that alters this or otherwise enables works to be lawfully carried out in these circumstances. Indeed, s.4 (4) CPA 1949 specifically reserves the right of prosecution and in my view aggrieved local inhabitants would additionally be able to found an application for an injunction preventing works on a breach of the Victorian Statues, or require CCC to undo works already done –with a considerable cost to the taxpayer.

Second, local inhabitants, who happened to disagree with any proposed coastal protection works would be, it appears, be entitled to apply for an injunction to prevent those works taking place. The foundation of this would be the legal rights that accrue to the local inhabitants upon registration as explained above. The principle of “give and take” may permit the Council to

continue to maintain Whitstable Beach/The Downs as it has been doing prior to registration but this would not extend to any new works that had the effect of impeding their recreational activity in any way or to the reduction in size or complete removal of the beach or the regarding of the cliffs.

Overall therefore, although some works of maintenance and repair may well be permissible the registration of Whitstable Beach would in my view seriously impede the Council carrying out its function as a coastal protection authority by criminalising necessary works and/or providing local inhabitants with avenue of legal challenge that they would not otherwise have. As a Council, we cannot of course instruct our staff or contractors to undertake works which would constitute criminal offences.

We have therefore come to the conclusion that the law needs to be amended to deal with this statutory conflict. It cannot have been parliament’s intention that beaches and cliffs which form part of our coastal defences would become protected village greens. The anomaly has to be addressed in our view.

I am therefore asking if you as our local MP’s would raise this matter with the relevant Secretaries of State in DCLG and DEFRA to see what can be done. My officers have already liaised with the Environment Agency who broadly support our view of the law on this issue. If you would like to meet with local councillors and my officers to discuss the matter further then please let me know.

You can find more information about the background to this problem here:

https://www.canterbury.gov.uk/leisure-countryside/countryside/town-or-village-green-status/

I look forward to hearing from you.

Yours sincerely

Colin Carmichael Chief Executive