Archived decisions

Contact: Dalee Kaur, Solicitor, ext 6605

1 Summary

1.1 This report deals with an application to register land known as Burns Close, Eastleigh as a village green under the Commons Registration (New Land) Regulations 1969 made pursuant to section 13 of the Commons Registration Act 1965 (`the 1965 Act').

1.2 The 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 Mr Morgan of Counsel has advised that this application should be rejected because it seems clear that the use claimed has not been as a right for at least a large part of the land.

2 Legal Definition

2.1 Section 22(1) of the 1965 Act was amended by the Countryside and Rights of Way Act 2000 (which took effect on January 30, 2001).

2.2 Town and village green means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have customary rights to indulge in lawful sports and pastimes or which falls within subsection (1A) of this section.

2.3 Land falls within subsection (1A) 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) continued to do so; or

b) have ceased to do so for more than such periods as may be prescribed, or determined in accordance with prescribed provisions.

3 Criteria for registration

3.1 In order for an applicant to establish that land should be registered as a town or village green, the 1965 Act requires the following to be proved:-

a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality;

b) have indulged in lawful sports and pastimes for not less than twenty years;

c) as of right;

d) on the land in question;

e) and either continue to do so, or have ceased to do so for more than such periods as may be prescribed, or determined in accordance with prescribed provisions.

4 Background

4.1 Hampshire County Council received an application from Mr Roger Monks as Chairman of the Burns Close Allotment Garage and Residents' Association (BAGRA) on 16 December 2002. The application was supported by fourteen evidence questionnaires together with plans and photographs.

4.2 The application land comprises of three areas:- garages, a grassed open area and allotments. A plan of the application land is at appendix 1.

4.3 There are two objections to this application. One is made by Matfield Investments Limited (MIL) which owns that part of the application site which comprises the garages and open grassed area behind these. Eastleigh Borough Council which owns the remaining part of the application site which comprises the allotments, is the other objector.

5 Counsel's Advice

5.1 In light of the criteria set out in paragraph 3 Counsel has identified substantial difficulties with this application. These are set out below:-

a) The use for sports and pastimes for not less than 20 years:-

The evidence is not extensive. There appears to have been some use of parts of the land for such purposes. However, the evidence of even this is not very strong. Much of the use has been that related directly to the occupation of the nearby dwellings, namely the use of the garages for cars and perhaps other matters incidental to the occupation of the dwellings. The position even in respect of the grassed open land behind the garages is not clear. It appears that there has been tipping on this land in the past. Gates and fencing have been erected and padlocked, although there appears to be a dispute as to whether the gates were locked. The fencing and gates were placed both behind the garages and the open land and between the open land and the allotments. MIL states that the dumping took place during the 1980s and into the 1990s. It appears the fencing took place in the 1990s.

b) A significant number of inhabitants of any locality, or of any neighbourhood

within a locality.

"Significant" does not mean considerable or substantial number. The approach adopted by the High Court is that what matters is that the number of people using the land in question has to be sufficient to indicate that their use of the land signifies that it is the general use by the local community for informal recreation, rather than occasional use by individuals as trespassers.

These terms are not defined in the legislation. Locality has to be an area recognised by the law. Counsel fails to see how that is satisfied by this application. However, identification of a neighbourhood within a locality can also satisfy this requirement. It seems generally accepted that any estate is a neighbourhood. However, we are talking about direct evidence from just fourteen people from thirteen dwellings. Moreover, some of the uses which were clearly permitted and cannot assist in classifying the land as village green ie gardening on the allotments.

Counsel believes that it seems highly doubtful that the applicant has demonstrated that the land has been used by a significant number of inhabitants from a locality or a neighbourhood within that locality.

c) As a right.

This means that the use must be without force, without secrecy and without permission. With respect to the garage area Counsel finds it very difficult to see how this could possibly be included within land registered as village green. The twenty-four lock-up garages face onto a concrete forecourt area which date from the 1960s. Their use is related directly to the nearby dwellings. Putting aside the difficulties with section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 it is very difficult to accept that the alleged users of this area can be said to be perceived by the reasonable landowner as an assertion of use as of right.

With respect to the allotment land, Counsel's understanding is that this land has been used for a considerable time and continues to be so for allotment purposes. Such a use is not that usually associated with a village green. Moreover, it is a use which is permitted and its use cannot be said to be as of right.

5.2 In summary, it therefore seems to Counsel that the application relating to the whole of the application land should inevitably fail because it seems clear that the use claimed has not been as of right for at least a large part of the land. Moreover, the application is not supported by evidence which demonstrates that any use of the land for lawful sports and pastimes has been by a significant number of inhabitants of any locality or any neighbourhood within a locality. If this were the only determining issue (that the use has been by a significant number of inhabitants of any locality or any neighbourhood within a locality), it would probably be appropriate to explore this issue by way of a public inquiry in fairness to the Applicant and in accordance with the common practice. However, given Counsel's view on the "as of right" issue, an inquiry would not appear to be necessary.

Recommendation

That the application to register land known as Burns Close, Eastleigh as a village green made on 16 December 2002 by Mr Roger Monks be rejected because:-

a) the use claimed has not been as of right for at least a large part of the land;

b) the evidence does not demonstrate that the use has been by a significant number of

inhabitants of any locality, or of any neighbourhood of any locality.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose 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

Nil