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

1 Summary

1.1 An application made by Peter David Oulton (who has instructed solicitors and counsel to prepare the application) was received on 26 October 2007 to register as town or village green land known as Donkey Derby Field, Hamble as shown edged red 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 should be registered as a town or village green on the basis that a significant number of the inhabitants of the civil parish of Hamble-le-Rice have indulged as of right in lawful sports and pastimes on Donkey Derby Field for at least 20 years and continued to do so at the time of the application.

2.2 The application form was accompanied by 3 files of supporting information/evidence. These contained a plan of the proposed town or village green, a plan of the locality, other plans, conveyancing information and photographs referred to in the application together with 55 pro forma questionnaires (drafted by counsel). The uses of the land referred to in the questionnaires include walking with or without dogs, blackberry picking, kite flying, model aircraft flying, dog training, bike riding, racket and other ball games, frisbee throwing, picnicking, sunbathing, camping, children playing and metal detecting.

These uses would be categorised as `lawful sports and pastimes' for the purposes of registration as a town or village green.

3. The Law

3.1 Under section 15 of the Commons Act 2006 applications can be
made to amend the Register of Town or Village Greens where land becomes a town or village green. The Commons (Registration of Town or Village Greens) (Interim Arrangement) (England) Regulations 2007 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, lessees/tenants/occupiers and anyone likely to wish to object to the application 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 The application is made under section 15(2) on the basis that a significant number of the inhabitants of the locality of the civil parish of Hamble-le-Rice have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and continued to do so at the time of the application.

3.4 The law relating to towns or village greens is complicated and several of the elements in section 15 which need to be satisfied before land can be registered have been the subject of judicial consideration in recent years, for example `significant number' `as of right' and the House of Lords considered numerous such issues in the case of Oxford County Council -v- Oxford County Council and Robinson in May 2006.

4. The Landowners

4.1 The land is owned by Eastleigh Borough Council. Hamble-le-Rice Parish Council have a lease of the land.

5. Objections and issues

5.1 Eastleigh Borough Council and the Parish Council have objected to the application, as have 5 local residents and 5 others.

5.2 Eastleigh Borough Council "strongly oppose" the registration of the land as a town or village green and in its statement of objection says that they understood that prior to 1994 the previous owner of the land gave permission for certain events to be held on the land and that since that time the use of the land has been with the permission of the Council.

Hamble-le-Rice Council object on the basis that public use of the Donkey Derby Field has always been permissive and so evidence of public use "as of right" for at least 20 years does not exist.

One objection by a local resident say he has "lived in Hamble for 70 years and have never known the area described ....being used for in excess for 20 years "inhabitants of the civil parish of Hamble-le-Rice having indulged as a right in lawful sports and pastimes".

Another first objection by a lady not currently resident, but who lived in Hamble for the last 25 years of her life says "The Donkey Derby field has not been used as a playing field or such for many years".

5.3 The Borough Council when it acquired the land covenanted not to use the site for any purposes other than for public open space, but so that such restriction shall not prevent

(a) use for play areas or areas for formal games or the erection of one building for interpretation and information purposes

(b) the enhancement of the property for the purposes of conservation

The Parish Council have leased the land since October 2004 under which the land is to be managed to provide the use of the land as open space land maintainable at the public expenses for public use for recreational purposes or such other use as shall previously have been approved in writing by the Borough Council.

5.4 The issues

It appears that, notwithstanding the evidence of use in the questionnaires, that there is a dispute of fact over the use made of Donkey Derby field.

There also appears to be at least one issue of law in dispute in relation to whether the use of Donkey Derby field has been, throughout the relevant period, as of right.

The applicant states that a "licence" (ie turning use into use "by right" rather than "as of right") cannot be implied from mere inaction of the landowner with knowledge of the use to which his land is being put. However, this is not the case here, as the land has (since 2004 at least) been managed with a view to its use by the public for recreational purposes.

6. Recommendation

That, in connection with the application to register Donkey Derby Field, Hamble 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.

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