Contact: Dalee Kaur, Solicitor , ext 6605

1 Summary

1.1 This report concerns an application to register land at Testwood, Totton, as a village green under the Common Registration (New Land) Regulations 1969 made pursuant to section 13 of the Commons Registration Act 1965.

1.2 These Regulations set out the procedure to be followed in seeking to amend the register of the town and village greens maintained by the County Council as registration authority.

1.3 The grounds for registration are made under section 22 (1A) (a) of the Act, where land becomes village green if not less than twenty years, a significant number of inhabitants of any locality, or of any neighborhood within a locality, have indulged in lawful sports and pastimes as of right, and have continued to do so.

2 Background

2.1 In 1999 Hampshire County Council received an application under the Common Registration Act 1965 to register an area of land adjacent to Testwood House Farm, Testwood, Totton, as a Village Green. The applicant was Mr D Whiting. The owner of the land, Linden Homes (Southern) Ltd, a property development company, did not consent to the application.

2.2 The application was supported by statements made not only by the applicant but also by a number of witnesses. The objector, Linden Homes, also supplied detailed evidence to support its objection. In view of the substantial conflict of evidence submitted by both the applicant and objector a report on the matter was considered at a meeting of the Rights of Way Panel on the 30 March 2000. Members resolved that a non-statutory Public Inquiry should be held with an Inspector appointed to hear all the evidence.

2.3 A Public Inquiry was held on the 14-16 February 2001 with an independent barrister, Mr Sasha White, appointed as Inspector. Mr White produced a report dated 27 February 2001 recommending that the application should be rejected as the grounds for the registration were not met.

2.4 After discussion of the matter at a meeting on 29 March 2001, the Panel decided to request the Chief Executive to seek further legal opinion from a different counsel and report back to a special meeting of the Panel. Counsel was asked to review the material considered by the Inspector and advise whether there were any reasons why his conclusions and recommendation should not be relied upon.

2.5 Ms Shelia Cameron QC was instructed to give the further opinion sought. Although she took a different view from the Inspector on one aspect of interpretation of the legislation, she concluded that, overall, the Inspector was correct in concluding that the grounds for registration had not been made out in the case. When the Rights of Way Panel met again on 30 April 2001, the application was therefore rejected.

3 New Application

3.1 A further application dated 8 October 2001 has been received from the same applicant, Mr Whiting. The application is to register land at Testwood as a village green. The land, the subject of the application, is part of that which was the subject of the original application for registration. The applicant states that he considered this application to be a new application with new evidence which was not considered at the Public Inquiry in February 2001. Mr Whiting, however, did not submit the entirety of this evidence, but suggested that further evidence was to follow.

3.2 The Council wrote to Mr Whiting on 26 October, 20 November and 30 November 2001, asking him to submit a written summary of the new material contained in the evidence submitted in support of the new application and any further evidence or statements in support of the application, which was not considered during the course of determination of the original application last year. He was also informed that unless the Council received the evidence upon which he wished to rely on, it would determine the application on the evidence before it and not consider any further evidence at a later stage. The Council received Mr Whiting's further evidence on 11 February 2002, which has therefore not been taken into consideration.

3.3 The legislation does not prohibit further applications being presented to the registration authority for the same site where determinations have previously been made. However, in light of the costs and resources devoted to the Public Inquiry in February, it was considered prudent to seek Counsel's advice in this application to avoid any undue costs at a later stage. Counsel instructed was Mr Sasha White who was being asked to consider whether his application dated 8 October 2001 was in fact a new application and if so, whether it was duly made.

3.4 Counsel concluded that the evidence supplied in support of the current application did not differ greatly from that considered at the Public Inquiry into the original application. His advice is therefore that a renewed hearing into the matter is not justified, and that the application should be rejected on the basis that the grounds for registration had not been met.

3.5 Due to the importance of this matter, further advice has been sought from a senior barrister, John Hobson QC dated 12 February 2002, as to whether Mr White's conclusions are appropriate. Mr Hobson has confirmed that he agrees with the conclusion that no new hearing is justified. Further, although he takes a different view on one aspect of the interpretation of the legislation, he confirms that the application should be rejected on the ground that it fails to show that there has been user as of right for the requisite period of 20 years prior to the date of the application. Both of these opinions were obtained on the basis of the application and evidence submitted on 8 October 2001.

3.6 In these circumstances, it is concluded that the only appropriate cause of action for the Council to take in this matter is to reject the current application.

Recommendation

That the application for registration be rejected for the reasons given in Sasha White's advice, as supplemented by the further opinion of John Hobson QC in that 1) the evidence provided in support of the application did not differ greatly from that considered at the Public Inquiry last year and 2) the application fails to show that there has been user of right for the requisite period of 20 years prior to the date of the application.

Section 100 D - Local Government Act 1972 - background papers

The following documents enclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1. Published works

2. Documents which disclose exempt or confidential information as defined in the Act.

TITLE LOCATION

Application for registering and supporting Chief Executive's Department

documents dated 8 October 2001

Inspector's Report, 27 February 2001 Chief Executive's Department

Opinion of Ms Sheila Cameron QC, Chief Executive's Department

28 April 2001

Correspondence and documents on file (VG 214) Chief Executive's Department