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 as not "duly made".

2 Introduction

2.1 An application has been made by Errol O'Farrell, Clerk to Four Marks Parish Council to register land at Lymington Bottom, Four Marks, 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 Two application forms have in fact been received, the first on 13 June 2006 with a plan and a short statement re the plan and the second on 25 October 2006 with a plan and an explanatory statement.

In processing this matter, it has been regarded as one application, although Counsel's advice treats the application forms as being separate applications.

2.3 The first application form says in response to the question "How did the land become a town or village green" at Part 5 "The access and the land has been used by walkers, dog walkers, children, as `open space' for 20+ years. Dispute has arisen because the new owner of No 20 Lymington Bottom has closed off the track, which he admits is not his. This makes the area behind land locked".

Part 9 of the application form invites the applicant to give details of any other facts relating to the application which ought to be brought to the attention of the registration authority and the applicant said, inter alia, that `No 20 was bought in 2004 and in 2005 he suddenly cut off the access drive, cut down trees and hedges and refused access."

3. The Law

3.1 The procedure to be followed in respect of applications to register land as town or village green is set out in the Commons Registration (New Land) Regulations 1969.

3.2 Under regulation 5(7) the registration authority gives an application preliminary consideration as to whether it is "duly made" and the application can be rejected at this stage (but not without giving the applicant an opportunity to put the application in order). This preliminary consideration and rejection where the application is not `duly made' seems to be directed to
cases:-

· Where the application form has not been duly completed in some material respect, or

· Where the application is bound to fail for some reason.

3.3 The House of Lords confirmed in the case of Oxfordshire County Council v Oxford City Council and Robinson (24 May 2006), that use must continue to the time of the application and as the applicant had stated access had been prevented in 2005, and the application was made in 2006 it seemed that the application was bound to fail and thus would not be "duly made".

4. Advice on Application

4.1 Counsel's advice was taken in respect of the application and Vivian Chapman QC advised (Opinion of 29 August 2006 attached as Appendix 2) that the registration authority should write to the applicant, explaining it is considered the application is not duly made in that (a) the supporting statutory declaration has not been duly completed and (b) that the application appears on its face doomed to failure on the ground that recreational use by local people was not continuing down to the date of the application. Counsel also advised that the applicant should be asked whether it still wished to pursue the application and if so to submit (a) a new duly completed statutory declaration in support of the application and (b) a full written explanation of how the application can succeed notwithstanding it appears that recreational use by local people ceased before the date of the application.

4.2 The applicant was therefore written to with that explanation and on
25 October 2006 a second application form was received, with a statement in explanation of why continued usage to point of application ceased.

4.3 This second application form was sent to Counsel for his further advice (Opinion of 10 December 2006 enclosed as Appendix 3) and he refers in paragraph 3 to there still being "important procedural defects in the application and supporting evidence" and in paragraph 4 to the fact that "the application faces an insuperable substantive defect". He concludes that "an application which is bound to fail on its face is not "duly made". The applicant has been given an opportunity to address this point but has been unable to overcome it. In my view the defect in the application is insuperable and the application should be rejected as not "duly made"

5. Recommendation

5.1 That the application to register land at Lymington Bottom, Four Marks should be rejected as not "duly made" under the Commons Registration (New Land) Regulations 1969 for the reasons set out in Counsel's opinions dated
29 August 2006 and 10 December 2006.

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 and material relating to progress of application - held in Chief Executive's Department