Contact: Liz Ellam, (01962) 847371 [email protected]

1 Summary

1.1 An application has been received to register land as town or village green. The recommendation is that the application be rejected.

2 Introduction

2.1 An application has been made by Mr B Ironside of 42 Pendennis Close, Winklebury, Basingstoke to register "The Field", off Kempshott Lane, Worting, Basingstoke as town or village green. A copy of the plan on which the land the subject of the application is outlined in red is attached herewith at Appendix 1.

2.2 "The Field" was originally stated to be in the locality of "Worting Village Winklebury Buckskin Kempshott Wards". This has been amended so that the locality is stated to be the "Parish of Worting".

2.3 The application form states that the land became town or village green in July 2005 "by the actual use of the land by the local inhabitants for lawful sports and pastimes as of right for not less than 20 years and continuing".

3. The Law

3.1 Under section 13 of the Commons Registration Act 1965 applications can be
made to amend the Commons Register where land becomes common land. The Commons Registration (New Land) Regulations 1969 set out the procedure to be followed in respect of such applications which is that they must be advertised (there is a period within which objections to the application can be made) and the owners of the land are to be given notice of the application.

3.2 Any objections received are sent to the applicant for comment. Once the applicant's comments have been received, the Commons Registration Authority considers the merits of the application.

3.3 In this case, as is usual with such applications, the Commons Registration Authority has taken Counsel's advice and this has been sent to both applicant and objectors for comment.

3.4 Under section 22(1A) of the Commons Registration Act 1965, in respect of applications made after 31 January 2001, town or village greens which are based on user evidence are defined as "land on which for not less than 20 years a significant number of the inhabitants of any locality or of any neighbourhood within a locality, have indulged in lawful sports or pastimes as of right, and either (a) continue to do so or (b) [not applicable]"

3.5 Applications for town or village greens have been the subject of several Court cases over recent years and consequently the elements of the definition have been the subject of extensive and high level judicial interpretation, most recently in the case of Oxfordshire County Council - v - Oxford City Council heard by the House of Lords in May 2006.

4. The Application

4.1 The application form was accompanied by 25 letters of support. The objectors have plotted the location of the authors of those letters on a plan of the area and a copy of that plan and a list of the addresses of the authors is attached at Appendix 2.

4.2 The application was also accompanied by various photographs of the application land, extracts from papers relating to the Basingstoke and Deane Borough Council Local Plan and documents relating to the Worting Cricket Club.

4.3 There are two public footpaths which run along the south western edge of the land (FP21) and along part of the eastern edge of the land (FP38). FP21 connects at its north western end with FP20 which runs to the Southern side of the railway and crosses it, continuing north and north east.

4.4 There is also a permissive path, agreed in 2002, heading from Old Kempshott Lane along the track to the Cricket Ground (part of "The Field"/application land) then skirting the eastern and southern edges of the Cricket Ground and along the southern side of the railway, connecting with FP21/FP20.

4.5 A plan on which the approximate positions of public and permissive footpaths are shown is attached at Appendix 3.

4.6 The use referred to in the majority of the letters in support of the application appears to relate to use solely of these footpaths and as such would not be qualifying use for the purposes of any application for town or village green , not being use "as of right" and not being use for "lawful sports and pastimes".

4.7 The other uses referred to in some letters are, variously, playing, trainspotting, picnicking, picking blackberries, feeding horses, exercising dogs and the area referred to, whilst not entirely clear, is the field itself, not just the footpaths.

5. The Landowners

5.1 There are two owners. That part of "The Field" known as the Cricket Ground is owned by the Winchester Diocesan Board of Finance who hold it on trust for the Parochial Church Council of the Parish of Worting. This land was originally in the ownership of the Manydown Estate, but was sold by the Estate in 1957 to the late Herbert Arthur John Lamb. Mr Lamb granted a lease of the blue land for 999 years to Worting Cricket Club, subject to a forfeiture clause in the event that the land was not used for sports or cricket for a continuous period of 12 months. That lease was forfeited when the Cricket Club disbanded in the early 1970s. From 1973 to 1978, it was leased to Eaton Limited as a sports ground. When Mr Lamb died in 1975, he left the land to the Winchester Diocesan Board of Finance, a trust for Worting Parochial Church Council. From 1981 - 1999 the land was let on a grazing licence to various people including Mr Dalton.

5.2 In 2000, the Manydown Company Limited (`Manydown') were granted a Farm Business Tenancy and Manydown has occupied the land since then.

5.3 The remainder and bulk of "The Field"/application land has since at least March 1980 formed part of Manydown's Home Farm. Until 2000, it was used for the growing of arable crops in rotation. Substantial evidence has been provided in the form of copy harvest records, IACS Field Data Sheets, soil analyses, a seed contract, agronomist's reports, work reports of the farming activities, records of products applied etc which have satisfied the author of this report that this part of the application land has been used for agriculture until 2000.

5.4 The land has been is set aside since 2000 and the landowners say they `top' the grass once a year and `top and side' the surrounding hedges every 2 - 3 years.

6. Use of the Land

6.1 Whilst the case law has established that low level agricultural activity need not be incompatible with or inconsistent with use of land which has been made use of by the public for lawful sports and pastimes, this would not seem to be the situation here where the land has been successively used for crops until 2000. The landowners have provided evidence from the farm manager that whilst there were crops in the field, "there was never regular access by walkers into the crops so as to create any sort of path in the crops. Further I can recall no specific incidents when the farm workers encountered people in the field who would otherwise have caused an obstruction by being in the way of machinery".

In its original Objection the Objector referred to the lack of any evidence of use sufficient to satisfy the statutory criteria to qualify as a Village Green. As referred to above, the Objector also produced detailed evidence of the use of much of the land over the relevant period for agricultural purposes. The applicant was given the opportunity to respond to the Objector's contention. In response to the Objection the Applicant asserted that it has proven that sufficient use has been made of the area subject to this application. However, no additional evidence has been produced. The evidence to support this use remains therefore very limited - there is only direct reference to this in a small number of letters and even the extent of the use described in these is far from clear. The Objector has now added even more doubt to this assertion by the Applicant by further evidence to support the agricultural use.

6.2 It seems more likely than not that whilst there may have been occasional incursions into the field under cultivation this would have been at a very low level.

6.3 Since 2000 of course, as the land has been in set aside , access by the public to the entirety of the land would have been enabled.

6.4 The Cricket Ground land was from early 1980, it is understood, separated from the remainder of the application land by a barbed wire fence and used as grazing land for horses until 2000, when Manydown entered into the Farm Business Tenancy previously referred to.

6.5 There are references in some of the letters accompanying the application to the feeding of horses which actually could be undertaken from the (since 2002) permissive footpath skirting the southern and eastern edge of the Cricket Ground.

7. Objections, Comments, Counsels' Advices

7.1 Attached at Appendix 4 is the statement of the objector; at Appendix 5, the applicant's comments thereon; at Appendix 6, the advice given to the Commons Registration Authority by Stephen Morgan of Counsel; at Appendix 7, the objector's and applicant's response thereto and at Appendix 8, further advice from Stephen Morgan of Counsel.

8. Summary of Issues and Conclusion

8.1 In accordance with section 22(1A) of the Commons Regisistration Act 1965, the questions that arise are-

1). Have a significant number of the inhabitants of any locality or of any neighbourhood within a locality

2). indulged in lawful sports and pastimes.

3). as of right

4). for at least 20 years back from July 2005.

In response to those questions the position is as follows:-

1. The locality has been stated to be (as amended) the Parish of Worting.
Most if not all of the letters in support of the application are from residents of Buckskin. The objectors have provided information that, from the 2001 census based on 2003 ward boundaries, the population of Winklebury ward was 7089, Buckskin 5326, Kempshott 7241 and South Ham 7449.

Even allowing for a further amendment of the application to reflect that most of the letters in support come from residents of Buckskin, 25 letters cannot be said in the circumstances to be a significant number of either the locality or neighbourhood, the test here being that the number of people using the land has to be sufficient to indicate that their use of the land signifies that it is in general use by the local community for informal recreation, rather than occasional use by individuals as trespassers.

2. Half of those letters refer solely to use appearing to relate only to use of the footpaths through and skirting the land. The other uses referred to are not specific to the area or extent of the use. Further, on the basis of the evidence provided by the landowners, those uses could not have taken place on any meaningful basis throughout the period 1980 to 2000 on the majority of the field as this was being used for arable cultivation. The Cricket Ground was let for grazing from 1980 to 2000. Since 2000 both areas have been in set aside, so it is likely that access to the larger area at least would have been unrestricted.

3. Use of the public footpaths and permissive paths (since 2002) is not `as
of right' but `by right'. As stated above the evidence provided of any use of the land for lawful sports and pastimes as of right is very weak.

4. Has there been 20 years use for lawful sports and pastimes? This is
dealt with above and in the view of officers, the answer is no.

9. Conclusion

9.1 In conclusion, it appears to officers that the evidence provided with the application is not sufficient to satisfy, on a balance of probabilities (the onus being on the applicant to prove), the statutory criteria in section 22 (1A) of the Commons Registration Act 1965, but Members will wish to consider whether this evidence is in fact a sufficient basis for the Applicant's contention. The Commons Registration Authority is recommended to reject the application.

9.2 The Applicant is requesting that he should be given the opportunity to present his case at a non-statutory public inquiry. This is addressed in Counsel's Advice and Further Advice. That advice points out that neither the Commons Registration Act nor the Regulations prescribe any procedure (beyond publicising and sending copies of any objections to the applicant) for determining an application. The Authority should consider whether the Applicant has been given proper opportunity to support its application with evidence. Fairness to both the Applicant and the Objector needs to be considered.

Officers consider the Applicant has been given proper opportunity to support his application with evidence and to respond to the Objection which highlighted the lack of evidence of use of the land for lawful sports and pastimes. As stated above, officers do not consider that the Applicant has shown that on the balance of probabilities that the use that has taken place satisfies the statutory criteria. On the evidence presented by the Applicant the case for registration is in the officers view weak. The Objector's evidence and the recent additional Witness Statement undermines this even further, in the view of officers. It is not considered therefore that any further investigation is required in order to determine the application fairly.

10. Recommentation

That the application to register "The Field", off Old Kempshott Lane, Worting Basingstoke as town or village green, be refused because the applicant has failed to prove that there has been use by a significant number of the inhabitants of a locality or any neighbourhood within a locality of the land the subject of the application throughout the requisite period.

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

Application and supporting documentation, objections and supporting documentation and supplementary material relating to progress of application - held in Chief Executive's Department