Contact: Dalee Kaur, Solicitor, ext 6605

1 Summary

1.1 This report deals with an application to register land off Derby Road, 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 Vivien Chapman of Counsel has been instructed as Inspector to hear the evidence in relation to this application and following a three day non-statutory public local inquiry advises that this application be rejected for the reasons set out in his Report dated 13 April 2004 (Appendix 2).

2. Background

2.1 The background to this application and the criteria that needs to be met by the Applicant under the 1965 Act are set out in the Report of the Chief Executive dated 10 September 2003 (Appendix 1).

2.2 Following the Report of the Chief Executive dated 10 September 2003 a non-statutory local inquiry was held on 4 and 5 December 2003. As further time was required the inquiry was adjourned to 23 January 2004.

3. Counsel's Advice

3.1 Counsel sets out the law in paragraph 7 of his Report considering this application both under the old and new definition of village greens. An application made before the new definition came into force (30 January 2001) must be determined in accordance with the old definition. An application made after the new definition came into force will be determined by the old definition (if the land became a green before the old definition was replaced) or by their new definition (if the land had not become a green under the old definition). Land which becomes a green under the old definition will not cease to be a green merely because it does not also fall within the new definition.

3.2 The Applicant claims that the application land became a green on 1 August 1970 which in Counsel's view fails for reasons set out in paragraph 8.2 of his Report. Counsel went on to consider whether the application land became a registerable green after 1 August 1970 and before the date of the application. He considered whether the application land became a registerable green in accordance with the old definition before 30 January 2001 and the new definition on or after 30 January 2001 but on or before the date of the application 16 July 2002.

3.3 Counsel concludes that the Applicant has failed to prove that the application land became a registerable green between 1 August 1970 and 31 January 2001 because he had failed to show:-

a) that recreational user was more than trivial and sporadic so as to carry the

appearance of user as a right;

b) that recreational user by tenants of the Gardens Estate was as a right as

opposed to permissive; or

c) that recreational user by the inhabitants of a "locality".

3.4 Looking at the period after 29 January 2001 and by 16 July 2002 Counsel concludes that the Applicant has failed to prove recreational user within the new definition because he has failed to prove:-

a) that recreational user of the application land has not been more than trivial

or sporadic such as to carry the appearance of user as a right; and

b) that user by residents of the Gardens Estate has been as a right rather than

permissive.

Recommendation

That the application to register land off Derby Road, Eastleigh as a village green

made on 16 July 2002 by the Cranbury and Desborough Roads Residents' Association

be rejected for the reasons given in Mr Chapman's Report dated 13 April 2004.

Section 100 D - 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 :

Published works.

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

NIL