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 Mrs J E Cornish, 17 The Leaway, Portchester and Mrs J A Knight, 25 The Leaway, Portchester to register "The Green", Station Road, Portchester 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. A copy of the plan showing "the neighbourhood and locality whose inhabitants have used the land ...." is attached herewith at Appendix 2.

2.2 The application form states that the land became town or village green on
1 January 1993 "on the basis of use in compliance with the definition of a town or village green set out in section 22 (1A) of the Commons Registration Act 1965 (as amended). Inhabitants of the neighbourhood and locality have indulged in lawful sports and pastimes as of right for not less than 20 years".

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 applicants and objector 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 18 proforma evidence questionnaires. Three of those completing the evidence questionnaires live in Station Road, 5 in The Leaway, 2 in The Crossway, 2 in Newtown, 1 in Hill Road, 2 in Kelvin Grove, 2 in The Hillway and 1 in Leith Avenue.

4.2 The uses referred to are people walking (18 references), dog walking (17), children playing (16), picking blackberries (10), football (7), picnicking (6), bicycle riding (5), bird watching (5), drawing and painting (4), people sitting (3), ball games (2), team games (1) and cricket (1).

5. The Landowner

5.1 The land is owned by Fareham Borough Council.

6. Objections, Comments, Counsels' Advices

6.1 Attached at Appendix 3 is the statement of the objector; at Appendix 4, the applicants' comments thereon; at Appendix 5, the advice given to the Commons Registration Authority by Vivian Chapman of Counsel; at Appendix 6, the objector's and applicants' response thereto and at Appendix 7, further advice from Vivian Chapman of Counsel.

7. Summary of Issues and Conclusion

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

1) have a significant number

2) of the inhabitants of any locality or

3) of any neighbourhood within a locality

4) indulged in lawful sports and pastimes.

5) as of right

6) for at least 20 years back immediately proceeding the date of the
application.

In response to those questions the position based on Counsel's advice, more particularly that of 3 July 2006 is as follows:-

1). Counsel is of the view that there is a dispute between the applicants and the objector and that this is a matter that cannot be decided on paper consideration. He says, if this issue were decisive, it would be necessary for there to be a non statutory public inquiry.

2). Counsel advises that the law is that a `locality' is some division of the county known to the law, such as a parish, manor, borough etc. "To prove user by the inhabitants of a locality, the applicants must prove that recreational use of the land has been predominantly by the inhabitants of a locality in this narrow sense. The area edged red on [Appendix 2] does not amount to a "locality" in this sense as the applicants have themselves recognised ....".

3). Counsel's opinion is that the evidence adduced by the applicants fails to prove recreational user by the inhabitants of a neighbourhood for the reasons set out in paragraph 43 of [his] Opinion of 16 March 2006. The claimed "neighbourhood" shown by a red line on [Appendix 2] is simply an arbitrary line drawn around the addresses of the majority of the witnesses. The claimed "neighbourhood" has no name or other cohesive element. The red line cuts in an arbitrary way through streets and plots of land".

4). Counsel's view is that the activities alleged by the applicants amount to "lawful sports and pastimes", there is a dispute as to whether there has been material recreational user of the land, which cannot be resolved by paper consideration and if the issue were decisive it would be necessary to hold a non statutory public inquiry.

5). Counsel is of the view that the use of the land was `as of right'.

6). Counsel says it appears to him there is a dispute as to whether the land has been used to any material extent for the 20 years immediately before the application, this is a matter which cannot be decided on paper consideration and if this issue were decisive, it would be necessary to hold a non statutory public inquiry.

8. Conclusion

8.1 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, because the applicants have not proved recreational use of the land either by the inhabitants of a locality or by the inhabitants of a neighbourhood within a locality.

8.2 The Applicants have been given a reasonable opportunity to deal with that issue but they have not overcome the defect in their application.

8.3 Counsels' advice is that the application should be rejected, but he reminds the registration authority as to

(a) the independent and informed consideration that must be given to the
application by the registration authority.

(b) the need to give written reasons for rejection and

(c) the applicants' right to apply for judicial review.

9. Recommendation

That the application to register "The Green", Station Road, Portchester as town or village green, be refused because the applicants have failed to prove user by the inhabitants of a locality or any neighbourhood within a 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

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