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

1 Summary

1.1 An application made by Mr. A. Shepherd was received on 24 May 2004 to register as town or village green land known as Testwood House Farm, Testwood, Totton as shown shaded green on the attached plan (appendix 1). The recommendation is that a non statutory public inquiry be held.

2 The Application

2.1 The application form states that the land became town or village green on
1983 to 2004 to present day through constant use by public, bird and nature watching, dog walking, blackberry picking, lawful sports and pastimes, walking for exercise for the last 20 plus years.

2.2 The application form was accompanied by 26 survey forms and 1 letter relating to use of the application land, 4 aerial photographs, 3 plans, 1 map of Testwood and Totton showing the claimed neighbourhood and Land Registry documents. Mr Shepherd has submitted much additional information since then including 9 additional survey forms.

2.3 Uses specified in the survey forms are predominantly walking and blackberry picking, also dog walking, bird/nature watching, childrens play, three refer to cycling, one to picnicing and one to guiding.

3. The Law

3.1 Under section 13 of the Commons Registration Act 1965 applications can be
made to amend the Register of Town or Village Greens where land becomes a town or village green. 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.

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 and Robinson in which the House of Lords delivered judgment in May 2006.

4. The Landowners

4.1 The land is mostly owned by New Forest District Council with a small area (pumping station and sewers) being owned by Southern Water Services Ltd.

5. Objections, Comments, Counsels' Advices

5.1 New Forest District Council have objected, as have 2 local residents. Southern Water also object as they have an agreement with the Developer of adjacent land to adopt the pumping station and sewers which are within the land the subject of the application.

5.2 Stephen Morgan of Counsel has advised twice, initially on the merits of the application as it was in August 2005. Counsel's initial advice dated
10 October 2005 (attached herewith as appendix 2) suggested three possible courses of action and the applicant and objectors were written to seek their views. However, the case of Oxfordshire County Council v Oxford City Council and Robinson was by this stage proceeding through to the House of Lords and a decision was taken to await the outcome of that case, then take Counsel's further advice which has now been done. Counsel's further advice dated 11 October 2006 is attached as appendix 3 and its summary is "20. In my view it would not be appropriate to approve the application without further investigation. Fairness would require that the Objectors are given the opportunity to test the Applicant's evidence. 21. That leaves the options of either rejecting the Application or further investigation, which is normally done by means of a non-statutory inquiry. 22. The Registration Authority may find it difficult to conclude that there is no substance in the Application such as to justify rejecting the Application without further investigation."

7. Recommendation

That, in connection with the application to register Testwood House Farm, Testwood, Totton as town or village green, a non-statutory public inquiry be held, an inspector being appointed in respect of the same, the inspector then to prepare a written report for the registration authority, with a recommendation to accede to or reject the application, unless any party commences court proceedings under R (Whitmey) v Commons Commissioners [2005] 1QB 282 within 2 months.

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