Archived decisions

IN THE MATTER OF THE COMMONS REGISTRATION ACT 1965

RE: LAND KNOWN AS TESTWOOD HOUSE FARM, TESTWOOD,

TOTTON, HAMPSHIRE

REPORT OF THE INSPECTOR TO THE REGISTRATION AUTHORITY

1. INTRODUCTION

1.1 I was instructed by Hampshire County Council, acting in its capacity as the Registration Authority under the Commons Registration Act 1965 ("CRA 1965"), to hold a non-statutory public inquiry.

1.2 I set out my report of the Inquiry under the following headings:

      2. The Application

      3. The Inquiry

      4. Case for the Applicant

      5. Case for the Objectors

      6. Assessment

      7. Conclusions and Recommendation

1.3 I should record that, in addition to the documentation listed below that is relied upon by the Applicant and Objectors, a statement was handed in by Elizabeth Milne. However, as I pointed out to Mrs Milne, her statement related to the merits of the use of the land rather than its actual use over the relevant period. Therefore it did not have a direct relevance to the issues that I have to consider.

2. THE APPLICATION

2.1 The application was made by Alexander James Shepherd of 3 Hamtun Gardens, Testwood, Totton, Hants. It was dated 20th May 2004. The application is pursuant to section 13 of the CRA 1965 and is to register 19 acres of land at Testwood House Farm, Totton, Hampshire as a village green.

2.2 The land lies adjacent to land which was the subject of 2 previous applications for registration as a village green. The first was rejected by the Registration Authority following a non-statutory public inquiry held on 14-16th February 2001. In his Report dated 27 February 2001 the Inspector recommended that the Registration Authority should reject the application. This they did.

2.3 The second application related to part of the land that was the subject of the first application and was also rejected by the Registration Authority.

2.4 The current application land is the subject of an Agreement between the landowner, developer and the New Forest District Council pursuant to section 106 of the Town and Country Planning Act 1990. The District Council acquired the land in March 20041. This arises in conjunction with planning permission for the residential development of 7 acres of adjacent land for 69 houses; the land has as a consequence been transferred to the Council in order that it can be laid out and used as public open space. That 7 acres of land is part of the land the subject of the first application for registration as a village green.

2.5 The basis of the current application for registration as a village green is that the land has been used by local inhabitants for lawful sports and pastimes as of right for not less than 20 years. The period of use is stated (in part 4 of CR Form 30) to be "1983 to 2004 to present day".

2.6 The locality from which the inhabitants using the land are said to come from is shown on a plan accompanying the application. Part 8 of the application form refers to a map of Testwood and Totton showing the neighbourhood of Testwood within the locality of Totton and Eling.

2.7 In answer to the question in part 5 of the Form, "How did the land become a town or village green?", Mr Shepherd stated: Constant use by public. Bird and nature watching, dog walking, blackberry picking, lawful sports and pastimes walking for exercise. For the last 20 years.

2.8 The application was originally supported by 26 survey forms, 1 letter, 1 aerial photograph; 3 plans; 3 further aerial photographs; 1 map of Testwood and Totton showing the claimed neighbourhood of Testwood within the locality of Totton and Eling; land registry documents relating to Testwood House Farm.

2.9 The application was objected to by the owners of the land, New Forest District Council, Southern Water and two local residents. Southern Water is responsible for a pumping station situated on the land close to the new development. The two local residents are Mr and Mrs Jones of 17 Hamtun Gardens, Testwood.

2.10 I advised in this matter in writing on 10th October 2005. Following that Advice the House of Lords delivered its decision in the case of Oxfordshire County Council v Oxford City Council and Catherine Mary Robinson [2006] UKHL 25.

2.11 Since my original Advice the applicant provided further documentation in support his application. This included responses by the Applicant to the Objectors' points and comments on the implications of the Oxfordshire County Council case.

2.12 In those circumstances I was asked to consider the implications of the Oxfordshire County Council case and this new documentation and advise the Registration Authority as to the best way to proceed in order to determine the application. On the 29 November 2006 the Registration Authority decided to hold a non-statutory public inquiry to consider Mr Shepherd's application and to prepare a report with recommendations to the Authority.

3. THE INQUIRY

3.1 The Inquiry was held at the Conservative Club, Totton on Monday 7 - Thursday 10th January 2008. I visited the site and area prior to the Inquiry and carried out a further un-accompanied site visit during the Inquiry on the afternoon of Wednesday 9th January 2008, the Inquiry having finished at 3pm on that day after the completion of the evidence.

3.2 The Inquiry was publicised by a press notification and site notices which were arranged by the officers acting for the Registration Authority.

3.3 Southern Water wrote to the Registration Authority on the 3 September 2007 to inform them that the company would not be making any representation at any forthcoming Public Non-Statutory Inquiry. Cllr. Bright assisted Mr Shepherd at the Inquiry. The other three objectors, Mr and Mrs Jones and the New Forest District Council, were represented at the Inquiry by Mr M Mundy, a solicitor of Clarke Wilmott Solicitors. I would at this stage warmly thank the main representatives, Cllr Bright and Mr Mundy, as well as Mr Shepherd and all the witnesses for the courteous and helpful way they all conducted themselves at the Inquiry and the assistance that was given to me.

3.4 Prior to the Inquiry documents were exchanged in accordance with pre-inquiry directions. Mr Shepherd raised concern about the way in which the documents were delivered to him on, he informed the Inquiry, Sunday 23rd December 2007. At the Inquiry I gave Mr Shepherd the opportunity to raise any particular concern that meant the presentation of his case was prejudiced. I emphasised that if he considered that he had been prejudiced he should raise that at the Inquiry so I could consider how this could be dealt with. However, Mr Bright, on Mr Shepherd's behalf, confirmed that he was not contending that there was any such prejudice.

3.5 I carried out an accompanied site visit commencing 12 noon on Thursday 10 January 2008. I was accompanied Mr Shepherd, Mr Whiting, Mr Andrews, Mrs Lemon, Mrs Newman, Mr Carlin, Mr Groom, Mr Mooney and Mr and Mrs Jones. Despite the unfriendly weather, I was able to undertake a full inspection of the application site and surrounding area and the parties were able to point out the various features which were discussed during the Inquiry. I found this extremely helpful in adding to my understanding of the issues to be addressed. The matters that I noted included:

    (1) I inspected what has been referred to as the Collect.

    (2) I had pointed out to me various remnants of fences along the left hand side of FP11 both before and after the Collect - including wire, barbed wire and posts.

    (3) I saw the ditch that Mr Mooney said he had constructed in 1989.

    (4) We then went back and crossed over FP11 by the bridge and kissing gate.

    (5) We then walked past a tethered pony in a NNE direct to the corner of the field with Nutwood Way. Fencing behind the existing new site fencing was pointed out to me.

    (6) We went along a path in a NE direction next to the Industrial estate and its fence. Remnants of fencing were pointed out to me in this area of Whetren's Copse.

    (7) We then walked around the edge of Whetren's Copse and walked south along the fence line which forms the eastern edge of the application site.

    (8) The triangle seen on the aerial photographs (ADG9,Tab10 of the Objectors' Bundle - photos 1a, 2, 3) was shown to me. I saw evidence of an old fence (post and barbed wire) in a clump of hawthorns between points B and C to the east of the application site. I also had pointed out to me where point B was considered to be by Mr Groom - there was again evidence of an old fence in a clump of hawthorns. Between points B and A an old fence post was pointed out to me. We also saw the "old" fencing to the rear of the new fence line.

    (9) We then walked back east to the corner where point C is and to the south side of the ditch on footpath 12.

    (10) I saw evidence of ditching along FP12 both outside the site and within the site beyond the stile going west.

    (11) Mr Shepherd pointed out the gap between two large clumps directly leading north from FP12 into the field. This "entry" point was at the kink.

    (12) I was also shown concrete footings and told by Mr Whiting this was position where a "kissing gate" used to be.

    (13) Along the right hand side (as I proceeded towards Hawkers Close) of FP12 moving west from the "kink" I could see evidence of previous fencing - posts/barbed wire/wire fencing.

    (14) The position of the farm was pointed out to me.

    (15) We didn't visit the pumping station but I had seen it previously.

    (16) We then proceeded N to see the old "Trespassers will be prosecuted" sign on a tree by the green area in Hawkers Close and the approximate position of the entrance to the farm.

    (17) The site visit then finished at about 2pm.

4. CASE FOR THE APPLICANT

4.1 The Applicant's case is in essence that the statutory criteria are met by the application.

4.2 The Applicant contends that notwithstanding two previous applications that were unsuccessful this application should be judged on its own merits.

4.3 Reliance is also placed upon the ecological preference, as the Applicant contends, of use of the land as a village green as opposed to the more formal use which the Applicant says the District Council wishes. However, as I made clear at the outset of the Inquiry and again during the Inquiry, the merits of alternative uses of the land is not relevant to the determination to be made in accordance with sections 13 and 22 of the CRA 1965.

    EVIDENCE PRODUCED IN SUPPORT OF THE APPLICATION

4.4 The evidence and documentation forming part of the application as detailed above were supplemented by the oral evidence of the following 12 witnesses called by the Applicant:

      (1) Mr R Andrews

      (2) Mrs C Lemon

      (3) Mr D Ramm

      (4) Mr D Blake

      (5) Mrs C Farleigh

      (6) Mr K Farleigh

      (7) Mr D Whiting

      (8) Mrs P Newman

      (9) Mr L Newman

      (10) Mr A Shepherd, the Applicant

      (11) Mr J Carlin

      (12) Mr F Bright

    Each of these provided a completed user survey form.

4.5 In addition to these witnesses the Applicant also produced the following documents at the Inquiry:

      (1) Letter dated 7 November 1985 from Mr K. Mooney to the Town Clerk of Totton & Eling Council

      (2) Letter from Mr K. Mooney dated 21 June 1988 to Hampshire County Recreation Department

4.6 A response to the witness statement of Andrew Groom was also provided on the opening day of the Inquiry.

4.7 Although this is not intended to be a comprehensive record or transcript of everything the witnesses said, I now summarise the main points of the oral evidence of the Applicant's witnesses. These summaries must be considered together with the original and additional survey forms and supporting documentation on behalf of the Applicant. When I consider the issues (in section 6 below), I have taken into account all of the evidence supporting the application and have borne in mind that inevitably an applicant cannot, for many reasons, produce every person who has used the land and not all will have used the land for the whole 20 year period2.

    Mr R Andrews

    Of 236B Salisbury Road. He has lived at his current address since 1980 which is a bungalow next to FP11. The only fence that he could recall was that on the approach to the old Farmhouse in 1986. The main fences were in the paddocks area where Hawkers Close had now been developed. He did not recall any signs except possibly at the entrance to the old farm where one always has been, even back in the 1950s. He gained access to the site from FP11 - there were no fences and no signs there. Under cross-examination Mr Andrews said that land was used basically for cattle. The land became totally disused in 1984 by which time he diverted off the footpaths and went all across. He remembered the controversy over the land in 1983/4. He also remembered the barn but "not necessarily the hay crop". When asked by me to clarify what activities he witnessed on the land he stated walking and dog walking. He also stated that he met "a load of other people". When asked by me what difference he saw between the uses in 1983/4 and now Mr Andrews replied "virtually no difference".

    Mrs C. Lemon

    Of 18 Sylvia Crescent. Mrs Lemon stated that she had used the land at least once a day since 1991. She had seen no signs or fences. When she lived at Calmore she parked at the Salmon Leap and walked from there. Because other people went off the footpaths she assumed that it was OK to do so. Now she walked anywhere on the land that she liked to. She saw other dog walkers. She remembered that she walked past the Farmhouse that was not derelict but not lived in. She accepted that that must have been after Stan Moore died. She thought possibly early 1985. She was conscious of coming off the footpaths. She also carried out blackberry picking.

    Mr D Ramm

    Of 2 Sutton Road. He had used the site between 1983-2004 - once a day as he walked the dog. He lives opposite FP11. He accessed the land across a ditch from PF11. He never climbed any fence and certainly never broke down any fence; the only fence that he recalled was in the immediate area of the Farmhouse. When under cross-examination Mr Ramm was referred to Mr Michael Moore's witness statement that the whole area had been fenced, he stated that he could recall that cattle had escaped on more than one occasion. He could not recall any locked gates. Under cross-examination Mr Ramm stated that he also used FP12 to go to the lakes. He wouldn't interfere with what happened on the farm. He was referred to his letter of September 1984 (Tab 16 p.22 of the Objectors' documents - in which he referred to using the footpaths and the bountiful hay harvest that summer). He couldn't remember when he started going into the fields but thought it was when the farm became neglected and abandoned. He said the most prolific blackberrying area was in the middle of the woods. He would cross the ditch and walk across the field. He didn't do that until the period David Moore "moved in". He couldn't recall that the fields were ever properly fenced - he thought that there was most reliance upon the hedges. He remembered two occasions of animals escaping - on the second the animals were impounded.

    Mrs C Farleigh

    Of 16 Greenfields Avenue. She has lived at this address since 1978. She accessed the land from Greenfield Avenue going past the farm. She was not aware of any fence but there was a big ditch. As she used to take her children she wouldn't forcibly enter anywhere. The only sign that she was aware of was the sign by the Farmhouse. There were other accesses e.g. off FP11. She used to take a picnic but not frequently. She didn't notice "hundreds of animals". She saw others walking dogs; blackberrying; it was not crowded but "we were not on our own". Under cross-examination Mrs Farleigh said that if she was walking to Calmore she would cut across to Brunel Road on the Industrial estate. She was using the footpaths in 1978. She was not aware of anyone telling her she could not use the land. She was friends with a Mr Gregory who used to work for the farmer. She never thought of it as a special concession but that was maybe why she didn't feel guilty doing it. Sometimes she went south and sometimes north for blackberrying. She took her children and sometimes walked; sometimes took bicycles; sometimes she used FP11 and sometimes FP12. They would cycle over the rough area. She remembered walking through the fields when the cows were there. She could remember styles (but not on the 19 acres) but not fences. The gypsies stopped her going onto the land - they were in occupation for about 18 months, although she couldn't really tell. They made one very wary. She was unable to confirm that the ditching and bunding took place in 1989. When asked about the difference now and in the mid 1980s she said it was now more overgrown; there were still quite a lot of people who use it - at one stage it used to be an area for children to play around the old Farmhouse.

    Mr K Farleigh

    Of 16 Greenfields Avenue. His wife used the area more than him because he was working. He couldn't recall hay making. He started to use the land when the farmhouse began to look a little derelict. He would access the land from Greenfield Avenue. He said that he used to do "all the ordinary things" on the land. He remembered sitting on the land, some 50ft in off footpath 12 - he estimated that was some 15-20 years ago. He said that he did blackberry picking along footpath 12; he would make his way over to the copse.

    Mr D Whiting

    Of 5 Stanley Road. Mr Whiting said that he used to walk over to the Nature Reserve and come out by Fishkeepers Cottage by Salmon Leap. He had visited the land once a month since Mr Moore's death. He said he would enter the land by footpath 12 which was never fenced and he didn't only stick to footpaths 11 and 12. After Mr Moore died, it was perfectly possible to walk from the footpath onto the land. He saw lots of other people. Mr Whiting also referred to research that he had carried out at the Hampshire Records Officer in relation to Commoners Rights. When asked under cross-examination about the neighbourhood/locality he had used for his application he accepted that he included Testwood Lane and properties off Testwood Lane Mr Whiting said that was because these were part of Testwood and that there were two Testwoods, Little and Great Testwood, Great Testwood being part of the Great Testwood Estate. He said that the public at large had been using the footpaths and going onto the 19 acres. Under cross-examination Mr Whiting did accept that footpath 12 was fenced to keep the cattle on the land and there was a style and a gate. Mr Whiting was referred to paragraph 6.2 on page 15 of the Opinion on the previous Inspector's Report which was dealing with Mr Whiting's application3 - there it was stated that "the cross-examination notes make it clear that Mr Whiting and most of his witnesses admitted that they had to force their way through a fence or gate". Mr Whiting said that when passing from footpath 12 along footpath 11 to the Collect there was a fence on the right hand side but not on the left. He accepted there was a fence when Mr Stan Moore kept cattle, along Kingfisher Lake (at the end of footpath 12), at the side of Whetran's Copse (now the industrial site fence) and a fence up to the Collect when he died. Mr Whiting said that when the gypsies moved in Mr Mooney dug trenches when they got off the land but that there was no attempt to stop other people walking there. He said in re-examination that the gypsies were there at least a year (as far as he could remember) and spread over all the site. He could walk through the gap from footpath 12 when the trench was dug.

    Mrs P Newman

    Of 7 Hamtun Crescent since 1980. Prior to that she lived just off Sutton Road, as a child. She was a bird watcher. She would enter the land from the Salisbury Road opposite the dairy - she would enter before the fence over what is now known as the Collect. Now she would enter by footpath 12 past where the new development is. She was not aware of fencing or signs - the only sign was near to the farmhouse - Trespassers will be Prosecuted. Hants CC had put up a sign recently. There were no signs or fences that prohibited Mrs Newman from getting onto the land. Not long after she moved into her current address she saw several cattle coming along her road. She also remembered escaped cattle as a child. We were told, Mrs Newman said, that cattle knocked fences down. The police had to be called several times. She said this was a main dog walking area and she picked blackberries in September. She was with the Girl Guides as a Patrol Leader. Mrs Newman referred to fencing on right hand side if coming from Salisbury Road and on the left when coming from footpath 12. She didn't see fencing in the hedgerows. With the Guides doing badges she was on land not far from the lake but didn't go to the lake because it was boggy.

    Mr L Newman

    Of 7 Hamtun Crescent. He had used the land for 40 years. He had picked blackberries for alcohol. He accessed the land from the Salmon Leap. He got caught a couple of times. Fortunately, he said, children were always pulling the fences down. The fencing was a low as a low fence would keep cattle in. He would put his foot on the bottom rung of the fence and walk through. When the gypsies were on the land there were plenty of people walking around when he was there. Had motorbikes on the land for a year. Under cross-examination Mr Newman accepted that the state of the fencing got worse after David Moore was on the land. He accepted attempts were made to mend the fencing but school children just pulled the fencing down. He couldn't remember Mr Mooney doing anything except for digging the trenches. The gypsies put scaffolding across the ditches which were very deep (5ft.) and very wide (6ft.). In answer to my question Mr Newman said that the land was a mess even when Mr Stan Moore was alive and one or two used the paths with their dogs on the lead but "not an excessive amount".

    Mr D Blake

    Of 241 Salisbury Road. Had lived there for 31 years. Prior to that he lived "around the corner" in Shakespeare Drive. He had used the land for at least 20 years - he said 22 years under cross-examination and started at about the time of the Inspector's Report on the planning appeal. He would cross the ditch off the Salisbury Road off footpath 11. He also accessed the land from footpath 12 at the back of the school. There were no fences along footpath 12. He would pick sloes along the lane and in the middle of the field - under cross-examination Mr Blake said that he began making wine in the late 1980s. He would put bread in the hollow of trees for the birds. There were no notices except by the farmhouse and the recent Council notices. He saw "loads of other people" - 10 to 12 a day but more at the weekend. He would see about 6-12 when he goes across the land at about 9 o'clock. Walks in morning and evening over the 19 acres. He would walk down footpath 12 through the woods and across the field to Footpath 11. He couldn't remember climbing through any fence. The gypsies didn't give him any problem - they were quite chatty.

    Mr A Shepherd, the Applicant

    Of 3 Hatton Gardens since 1976. He would go mainly directly from footpath 11 onto the land at the Collect. There was an access bordering the industrial estate and Whetren's Copse. He would also pretty regularly use footpath 12. He still used the land when the gypsies were present - he just went "right around the vans". He was never ever told to get off the land and as far as he was concerned it was open space. He broke down no fences. There were no signs on the 19 acres. Only people he saw were those using the land like him - he saw nothing to indicate it was a working farm. He believed he used the land as of right. Under cross-examination Mr Shepherd said that he didn't have a lot of time to ask people to fill in the survey forms; he confined it to people in the neighbourhood and delivered them by hand. When asked why he had taken half of the neighbourhood out from the previous application he said that he didn't think he had. Mr Shepherd was referred to the previous Inspector's Report where it was recorded that he had accepted that " the land was fenced around areas A and B but I am not sure about C...it was fenced but poorly."4 . Mr Shepherd accepted that there was boundary fencing for the school, along with Whetran's Copse and the industrial area and also on footpath 11 when you came from Salisbury Road there may have been fencing. On Strouds Green once you get to the Collect the wire fence on the right hand side was in a poor state and you could climb right through. Depending upon the time of the year; he would use the cycle route across about 4 times a year. He would go to Salmon Leap about 4-5 times a year. He would go onto the application site about once a week. He said that he accessed the land very early after Stan Moore's death. He didn't remember Mr Mooney repairing the fencing at all. Mr Shepherd referred to walking on the land with his boys, the eldest of whom is now 41 years of age. Asked about his photograph 23 (On page 137 of the Applicants' bundle) - he said that the entrance onto the land was probably there in 1983 - there was always something there to get across the ditch. In answer to questions about Mr Groom's photographs (tab 100 of the Objectors' Bundle) Mr Shepherd commented that for the 1989 photos lines 2 and 3 could have been footpaths and that there was no drainage ditch from Nutwood Way. With regard to the recent kissing gates and fencing Mr Shepherd said that he did not think that they were installed as early as 2004 as the Objectors claimed. He also said that the gates didn't stop anyone using the land, only the motorcyclists. In terms of the use of the land Mr Shepherd said it was currently fairly similar to what it was in the early 1980s.

    Mr J Carlin

    Of 84 Testwood Lane. Lived there since 1962. Has used the land daily. He accessed from Salmon Leap - for many years he would cross the field then along the school fence and then turn right onto footpath 11. Mr Stan Moore used to say if the dog harasses my cattle I will shoot the dog. Under cross-examination he added that Mr Moore was a very strange man who would change from day to day. The site was in a disgusting state when Mr Moore died. He saw no signs. Don't remember going over any fences and never saw any. Never saw any signs. Under cross-examination it was pointed out that his home was outside the neighbourhood shown in the application - he acknowledged that his neighbours do a similar walk. Mr Carlin said that people came in by the score when they said that they were going to develop the land. He added that "for spite" Mr Mooney dug ditches to destroy the Totton Movement who wanted to use the land. However, there were still gaps where you could get through.

    Cllr F J Bright

    Of 15 Huntingdon Close. He used to access the land from the Collect off footpath 11. First involvement with the site in 1983/4 He didn't walk initially all over. But he did enter onto the land. He had accessed through the industrial estate. Picked blackberries adjacent to footpath 11 and he wouldn't go onto the 19 acres very much: he confirmed in re-examination that when he went onto the 19 acres a long time ago he used it as a footpath. The ditch was called the Collect right back into the 1980s. Cllr Bright said that he had always been a popular place and as he recalled it in 1983/4 there was an awful lot of dog walking.

SUBMISSIONS ON BEHALF OF THE APPLICANT

Opening Submissions

4.8 At the outset Mr Shepherd stated that he was not relying upon plan 7A in terms of the locality or neighbourhood.

4.9 The Statement on pages 3-34 of the Applicant's bundle was then read out without any additions. In outline this Statement:

    (a) Claims all the criteria needed for registration of the land are met. The 20 year period is 1983 to 2004 and the land is still being used by people.

    (b) The application is nothing to do with any development.

    (c) Hampshire County Council Ecology and the Isle of Wight Trust would prefer the land to remain informal; Natural England share the views of the Wildlife Trust. NFDC would prefer it was laid out presumably as football pitches and the Applicant would like to see it as a village green. A village green would have less impact on the nearby nature reserve.

    (d) The farm fell into disrepair during the last couple of years of Mr Moore's life (he died in 1982) as he suffered ill health. Mr Mooney purchased the farm in 1983 and let it continue to fall into disrepair.

    (e) Access to the 19 acres was from the main farm track off footpath 11 and the Collect. Footpath 12 could also give access to the 19 acres. Any gates had fallen down never to be replaced on the main farm entrance and footpath 12. You could use the stiles on footpaths 11 and 12. Signs were non-existent on the 19 acres. Fences were also non-existent. Many pathways can be seen when using the 19 acres where people pass ad pass re-pass.

    (f) Southern Water has a pumping station on a very small part of the 19 acres which should have no impact.

    (g) Hawkers Close is within my neighbourhood as is Footpath 11. The majority of the residents of Hawkers Close could not meet the 20 year period.

    (h) Testwood is a neighbourhood as was proven by Sheila Cameron Q.C who stated "The issue was whether they were sufficiently close geographically and sufficiently inhabited to constitute a neighbourhood. I would have concluded that they were". Within this neighbourhood is a Chinese Take-Away and Chip Shop, Testwood Post Office, a Chemist, a Hairdresser, Co-op Convenience store, Testwood Baptist Church, Testwood Club and Testwood Recreation Ground; Testwood School backs onto the application land. The Applicant relied upon the views of Paul Johnson the Senior Commons Advisor to the Countryside Agency and those of the Open Spaces Society. The concept of neighbourhood was introduced by the CROW Act 2000 to overcome the rigid interpretation of locality by the Courts.

    (i) The application has nothing to do with any of the previous applications; it relates to a completely different area of the farm.

    (j) NFDC erected signs at various places on the 19 acres on 13 May 2005 to block the application, probably because of the appeal court's decision on the Trapp Grounds in Oxford.

    Closing Submissions

4.10 Cllr. Bright provided a typed Closing Submissions on behalf of the Applicant which in summary included the following matters:

      The Neighbourhood

    (1) The Applicant accepted that Mr Shepherd's indication of a neighbourhood was an oversight and accordingly requested, if it can be allowed at this stage, that the present application is amended to cover the previously defined application neighbourhood area.

      The Use for 20 Years as of Right

    (2) The witness statements and oral evidence has shown that many people have used the land over the 20 year period. This has been by way of the many access points indicated by the applicant.

    (3) This use has been without force and as of right.

    (4) There were no fences to stop this use and no photographic evidence submitted by the Objectors to show fencing that allegedly surrounded the 19 acres for any part of the 20 years.

    (5) No witnesses, including Mr and Mrs Jones admitted seeing any signage around the area of the 19 acres.

    (6) The 1986 appeal decision site has now been proven not to include a significant area of the 19 acre current application site.

    (7) All but one of the photographs produced by Mr and Mrs Jones showed the previous village green application site known as Strouds Green.

    (8) Mr Mooney has admitted that the public have wandered at will over all areas of his land and are not restricting their walking to the designated footpaths. In June 1988 Mr Mooney confirmed that "To carry out any further repairs would be a complete waste of time and money and we do not intend to do anything at all".

    (9) Although ditches were dug in 1989 our witnesses have stated that they still accessed the 19 acres from footpath 12.

    (10) No photographic or oral evidence to prove Mr Mooney's claim that signs were erected at the boundaries of this new area of application land.

    (11) The first fences to buffer the Nature Reserve were not erected until 1996. Thus gypsies had been able to enter onto the land in 1992/3.

    (12) Many of the Applicants' oral and written statements confirmed access to the land off footpaths 11 and 12.

    (13) Mr Groom accepted that the aerial photographs did not show the state of any fence. The aerials shown well worn paths on the application land.

    (14) The signs erected by the District Council that informed the public that they now own the land were erected on 15th May 2005 well outside the period of Mr Shepherd's application. In response to the contention that the fencing was erected in March 2004, Mr Groom was unable to state which fence that had gone up was unacceptable to the Authority or whether indeed it had been removed. The Applicant still strongly maintains that the evidence in tab 6 of the Objectors' Bundle clearly indicates only a proposal letter from Kings Oak. There was no evidence that the work was carried out prior to Mr Shepherd's application.

    (15) The Applicant requested that I consider whether the House of Lords decision in Beresford has any implications regarding Mr Shepherd's application.

5. CASE FOR THE OBJECTORS

5.1 In addition to their original objections, documents and and further responses, the Objectors provided a bundle for the Inquiry which included:

    (1) Witness Statement of Andrew Groom together with exhibits "ADG1" to "ADG17". Mr Groom gave evidence at the Inquiry.

    (2) Witness Statement of Mr Phillip Daren Moore. Mr Moore did not give evidence at the Inquiry.

    (3) Witness Statement of Mr Harry Jones who gave evidence at the Inquiry.

    (4) Witness Statement of Mrs Rosemary Jones who gave evidence at the Inquiry.

5.2 The additional documents provided by the Objectors during the Inquiry were:

    (1) Typed Opening

    (2) Letter dated 3 January 2008 from the Verderers of the New Forest to Mr Stuart Yeo the Assistant Valuer of the New Forest District Council

    (3) E-mail from Richard Payne of the New Forest District Council dated 19 March 2004 to Richard Lewis; e-mail from Mr Groom to Stuart Yeo dated 10 March 2004 and a variation order dated 4 March 2004 from Kings Oak.

    (4) Photographs showing Notice ("This land is PRIVATE no access is permitted save on public rights of way without the express permission of the landowner") and the path off Salisbury Road.

    (5) Plan relating to "Locality".

    (6) Legal authorities:

      R .(on the application of Laing Homes Ltd) v Buckinghamshire CC [2003] EWHC 1578

      Cheltenham from JPEL 2004 Case Comment taken from Westlaw

      R v Suffolk CC Ex p. Steed from Westlaw

      Extract from Halsbury's Laws on Easements - re "Enjoyment must be continuous"

      Oxfordshire County Council v Oxford City Council [2006] UKHL 25

    (7) Typed Closing

5.3 As indicated above oral evidence in support of the Objectors was provided by Mr and Mrs Jones, Mr Mooney and Mr Groom. Witness statement were provided by each. In the case of all but Mr Groom their witness statements that were provided to the previous inquiry were also produced. I don't summarise the contents of these witness statements below but, as for the Applicant's witnesses, I set out the main points of the oral evidence of the Objectors' witnesses. Again this needs to be considered with the witness statements and all the other documentation in support of the Objectors' case.

    Mrs R Jones (Tab 22 of the Objectors' Bundle, including a series of photographs, exhibit RIJ2)

    Of 17 Hamtun Gardens. Mrs Jones explained that the farmer originally ran the farm as a dairy farm. She used footpath 12. She didn't see many people but did see school children. She didn't see people using the blue (application) land as it usually had animals on it but David Moore didn't keep cattle in the blue fields (i.e. the 19 acres). When David Moore took over she saw him 2 or 3 times a week. Mrs Jones said that the farm did deteriorate when vandals got in after Mr Moore died. She said that she remembered Mr Mooney mending fences and then they were broken two or three days later but she didn't know who had done that. Mrs Jones said that she remembered people getting onto the land via by the Collect about 17 years ago, "early 1990 ish", she said. She said that she didn't think it would be before that as there were beef cattle on the land. She said, under cross-examination, that there were no horses on the 19 acres. Mrs Jones referred to horses being kept by David Moore on Strouds Green (which is of course outside the application site and now built upon with houses). Under cross-examination she re-iterated that anywhere a fence was broken down Mr Mooney continued to maintain the fences - she said she witnessed this from walking around the blue area (i.e. the application land). Asked about the route that she took across the land, Mrs Jones said she would walk along footpath 12 to the gate towards the Salmon Leap and on return would cross the 19 acres back to the Collect; she didn't do this every day as it was sometimes wet by the river. She said that she didn't have to cross any fences during the last 17 or 18 years. Mrs Jones remembers the big white notice at the junction where footpath 12 meets footpath 11 - it said "something about being prosecuted". She also remembered the sign, which is still there, on the oak tree as you went onto the farm. She accepted, under cross-examination, that animals did sometimes escape. There have been forest ponies on the land. When asked to clarify the position by me, Mrs Jones said she used the route across the blue (application land) in the 1990s and used to see people including Mrs Lemon and Mr Andrews. She said that her photograph 7 (which showed two horses by a gate) was the gate opposite the entrance to the farm.

    Mr H Jones (Tab 21 of the Objectors' Bundle)

    Of 17 Hamtun Gardens. He and his wife had lived at their address for 53 years. They used to walk along footpath 12 straight through the fields and along footpath 11 regularly. There were fences along footpath 12 which were intact opposite the school when they first moved there until about 2002/3. Mr Gregory ("Mr Moore's sister's husband") had a garden at number 11. The fence around the field that went to development was not in good shape at the other end. Even when gates were put in it didn't stop the motorcycles until the brand new fence went in alongside the school. Most times you couldn't have entered through the area by the Collect as it became wet. Later one could because it was opened up to the public. Mr Andrews walked along footpath 11 past my property, Mr Jones told the Inquiry. He remembered the sign at the bottom of his garden but didn't remember seeing any signs further up. He stated that when they used the land they stuck to the footpaths. Under cross-examination Mr Jones said that Mr Mooney gave him permission to walk on the land but he didn't walk just anywhere.

    Mr K Mooney (Tab 20 of Objectors' Bundle)

    Of Fernlea, Salisbury Road, Sherfield English, Romsey, Hampshire. Mr Mooney said that after purchasing the land, which was agreed in late 1983 and completed in January 1984, he allowed David Moore to stay on the field until he terminated his tenancy in 1985. In 1984/5 David Moore cut the grass for hay. No other hay was cut after 1986. He said the fences were "good, not brilliant" - they were not brand new but secure. He kept racehorses on the land for a while and there were cattle including 2 bulls. Mr Mooney said that it was inconceivable that "these good people would say that there were no fences or that they were poor". He said that he did not need to do much until the end of 1984 when damage began to be created. He carried out repairs through to 1985 and 1986. It was in 1987, Mr Mooney told the Inquiry, that he decided to create ditches - wide and deep to keep people out. Also there was the threat of the gypsies. With regard to his letters of 1985 and 1988 put in by the Applicant at the beginning of the Inquiry, Mr Mooney said that they were suffering in particular areas - The Collect was one particular area where people tried constantly to get onto the land. They put in fences - ditches weren't created until long after that time - along footpath 11 in 1989. On footpath 12 there used to be quite a secure gate past the farmhouse - he sealed it off "with an enormous chain and lock" but that night it was cut off. When the ditch was dug it was very difficult to get across - Mr Mooney said he got in trouble with the District Council over possible injury to people. Mr Mooney said it was successful. Mr Mooney referred to the appeal Inspector's Report in 1986 (tab 15 of Objectors' Bundle). He referred to the triangle of fencing that he said used to be present further up footpath 12 - he said he believed the posts were still there today in the bushes. Mr Mooney referred to the signs in tab 12 of the Objectors Bundle. He said they were prominently fixed by for example footpath 11 where people say they went in - you can see the ditch. He said there were two types of sign. He wrote to local people in July 1984 (tab 13 of the Objectors' Bundle). Under cross-examination Mr Mooney said the fencing to the north-east was 6ft high but lower along footpath 12. Mr Mooney said that with regard to photo 1a it was fenced in that triangular area ABC. Mr Mooney, in answer to Cllr Bright, said that the horses on the land in the 1990s were tracked down to someone living in Marchwood. Mr Shepherd said, in questioning Mr Mooney, that the letter sent to local people (in 1984) wasn't received. Asked by me to clarify the ditches built, Mr Mooney said that they were constructed along footpath 11 and footpath 12 until the kink. He said that the ditches were deeper then than now.

    Mr A Groom (tab 1 and exhibits ADG1 to ADG17 of the Objectors' Bundle)

    Of the Town Hall Avenue Road, Lymington. Mr Groom has no direct knowledge of the actual use of the land at the commencement date i.e. May 1984. He referred to the additional documents produced by the Objectors relating to the installation of the fencing and signs - these referred to an order date of 4 March 2004 for the fences and that the work would be completed by 12 March 2004. Mr Groom went through his aerial photographs (tab 10, exhibit ADG9) and explained the origins - 1 and 2 he had the originals; 3 and 4 were from the OS and 5 and 6 from the Electronic Mapping Service. When asked by Cllr Bright why he objected "so vehemently", Mr Groom said because he didn't believe that the case for registration had been made out. He was also asked why he prepared a report when he had no knowledge beyond recent events. Mr Groom replied that "someone had to do it". Asked whether he accepted the view of Mr Johnson (of theCountryside Agency) in respect of "neighbourhood" Mr Groom replied that there needs to be a clear boundary - he agreed that if an applicant can draw a clear boundary that is sufficient. He added that it was not clear to him what the area of neighbourhood or locality was meant to be. He said he believed Testwood is a neighbourhood. Mr Groom said that the e-mail from Mr Payne was evidence of the recent fencing work being done prior to the application. Mr Groom said that he had no evidence that the work was done after the application date. Mr Groom said that he believed permission was given implicitly by the actions of the landowner. When asked about the Notices, which it was said by Cllr Bright were erected 13 May 2005, Mr Groom said that he hadn't referred to those notices. He said the signs were erected as perhaps a belt and braces approach. It was pointed out to Mr Groom that the 1983 photograph (p 135 of the Applicant's Bundle) showed no gate around the farmhouse. It was also suggested to Mr Groom that 60 acres was a lot to fence; Mr Groom responded by saying Mr Mooney said there was fencing all around the 60 acres. Mr Groom acknowledged that the 1982 photograph was not as clear as he would have wished. When asked about the kissing gates by Mr Shepherd, Mr Groom accepted that they did not stop people entering the land. Mr Shepherd pointed out to Mr Groom that Mrs Jones said that there were no cattle on the 19 acres. Mr Groom suggested that there was evidence of cattle and he referred to the witness statement of Mr Phillip Moore. In answer to my question Mr Groom said that though it was said by a number of witnesses that the use back in 1984 was consistent with now, this was not borne out by the photographs in his tab 10.

SUBMISSIONS ON BEHALF OF THE OBJECTORS

Opening Submissions

5.4 The Objectors contended:

    (1) The motive for the Application is not relevant nor is the Council's proposed use.

    (2) The Steed case indicates there is a serious onus of proof on the Applicant.

    (3) I deal more fully with the arguments on locality and neighbourhood more fully below but the Objectors point out the differences in the area relied upon in the three applications and to the lack of cohesiveness in the area chosen. This confusion, the Objectors contend, should in itself cause the application to fail. The Objectors also commented additionally that Mr Shepherd's suggested removal of plan 7A would mean the removal of the only plan that identifies the neighbourhood.

    (4) The number of users is not significant.

    (5) The user has not been as of right since:

      (i) The use was not of such character, degree and frequency as to indicate an assertion of a continuous right.

      (ii) The land was continuing to be farmed until 1985. The fences were maintained to ensure that they were stock proof.

      (iii) The owners took constant action after 1985 and certainly until the late 1980s to protect the site from trespassers and vandals - including repairing fences and blocking gates and erecting signs.

      (iv) It was not until the more recent years i.e. 1990s that this land has been used extensively by the public as evidenced by the aerial photographs which show the appearance of tracks across the land. However, even this period was interrupted by occupation of gypsies/travellers in 1992/3.

      (v) In March 2004 and prior to the application being made the land was in any event opened up to the public at large for informal recreation following a great deal of publicity that this would be so. Access arrangements were made to the land to permit pedestrian access but keep out unwanted vehicles. Permission prior to the application defeats the claim.

    Closing Submissions

5.5 In closing the Objectors made the following points:

    (1) The Registration Authority, if it were minded to register the land, may be advised to remove the pumping station.

    (2) It is not possible to take another date for the end of the 20 year period.

    (3) Mr Shepherd could not define the area he chose as a "neighbourhood" other than to say that he picked an area which included his house and an area with a significant number of people. There is no clarity or logic to the area chosen other than that it included a number of roads where some people say that they have used the application area. By taking out those roads along and off Testwood Lane as in the original application, the changed neighbourhood lacks credibility. It is not possible to amend the area or for the Registration Authority to amend it.

    (4) The user was not as of right as Mr Mooney had taken action to secure the land against re-entry. He also wrote a letter which was sent to the majority of the neighbourhood - this letter was to let people know that it was private land. An owner does not have to meet force with force. Mr Mooney carried out constant actions until the end of the 1980s which were such that a use as of right cannot be established. There was only a few of those who gave evidence who claimed to use the land in 1983 after Stan Moore's death and one of these, Mrs Farleigh, felt that she had permission from Mr Gregory Very few claimed to use the land before 1986. All the evidence is that footpaths 11 and 12 were well used before people started using the blue land - many people were using these footpaths. This fits with letters written in relation to the 1986 inquiry. There was no agreement whether fences were in place or not. Mr Newman said a lot of people were pulling fences down - there were a lot of low fences that you could just step on the bottom rung. Mr Whiting broke down fences to gain access at the Collect. Mr Carlin remembered that the use started to increase in connection with the development.

    (5) The use was not such as to interfere with the farming activities in the period to 1986 when a hay crop was taken.

    (6) A distinction had to be made between a use which would suggest to a reasonable landowner the assertion of a rights of way and that which would suggest the assertion of a right to indulge in lawful sports and pastimes across the whole of the land.

    (7) Those who claimed to use the land for the most part stuck to set routes either from the Collect or from footpath 12 at the eastern end of the site across to the woods. These activities are not relevant to the claimed use but rather to a claim that rights of way may have been created.

    (8) There was a significant gap of 18 months when the gypsies were on the site. The encampment was all over the land and would have precluded any enjoyment for walking etc.

    (9) The evidence is that the fencing and gates were installed in March/April 2004.Mr Shepherd thought the gates were installed by the District Council which is not surprising given the publicity that the land was to be transferred to the Council for open space purposes. The reason for the fence and gates was both to stop the motorbikes and to make clear that permission was now given to the public to use the site for open space purposes.

6. ASSESSMENT

6.1 In this section I first set out the relevant legal framework taking account of judicial decisions. I will then assess the evidence and submissions in support of the Application against the legal framework. Finally, I will summarise my conclusions.

6.2 Although the Commons Act 2006 has been enacted, Mr Shepherd's application was made prior to this and falls to be determined under the CRA 1965. Section 13 of the CRA 1965 provides for the amendment of the register so that a new town or village green can be included. Further, as the application was made after 30 January 2001 it must satisfy the definition of a village green as amended by the CROW Act. The burden rests with the Applicant to demonstrate that on the balance of probabilities (i.e. it is more likely than not) that the statutory criteria, as amended, are satisfied.

    THE LEGAL BASIS FOR DETERMINATION OF AN APPLICATION UNDER SECTION 13 OF THE COMMONS REGISTRATION ACT 1965

6.3 The key statutory provision for the determination of this application under section 13 of the CRA is section 22(1A) of that Act as amended by the Countryside and Rights of Way Act 20005. This provides that:

    "Land falls within this subsection if it is land on which for not less than twenty years a significant number of inhabitants of any locality, or any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either-

    (a) continue to do so, or

    (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.

    There is no such prescribed period relevant to this Application.

6.4 From this provision relevant case law it can be seen that an application has to satisfy the following elements:

    (i) The land which forms the basis of the application has to have been used for lawful sports and pastimes.

6.5 The expression "lawful sports and pastimes" was considered in R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 A.C. 335. It was held that "sports and pastimes" is not two classes of activities but a single composite class, so an activity that was a sport or pastime falls within it. It was further held that dog walking and playing with children are, in modern life, the kind of informal recreation which may be the main function of a village green6. Flying kites, picking blackberries, fishing and tobogganing have been considered to fall within "sports and pastimes".

6.6 It is important, however, to distinguish the use of footpaths from use for sports or pastimes. In Oxfordshire County Council v Oxford City Council [2004] EWHC 12 in the High Court Lightman J stated that where the public use defined tracks over land this will generally only establish public rights of way unless the user is wider in scope or the tracks are of such character that user of them cannot give rise to a presumption at common law as a public highway, but user of such tracks for pedestrian recreational purposes may qualify. Both the Court of Appeal and the House of Lords on appeal held that it would not be appropriate to give any guidance on the evidentiary matters relating to the use of tracks and the other land.

6.7 Not all use that falls within the meaning of "lawful sports and pastimes" is sufficient, however. In White v Taylor (No.2)(1969) 1 Ch 160 at 192 Buckley J held:

    ...But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed.

    The Use must be to a sufficient extent; use which is "so trivial and sporadic as not to carry the outward appearance of user as of right" is to be ignored: Sunningwell [2001] 1 A.C. 335, 375D-E.

6.8 Not every part of the land has to have been used. However, the evidence must be such so as to indicate use as of right for lawful sports and pastimes of the land as a whole.

    (ii) The use has to have been by a significant number of people who come from:

      (a) A locality; or

      (b) Any neighbourhood within a locality.

    Significant Number

6.9 In R(Alfred McAlpine Homes Ltd) v Staffordshire County Council [2002] EWHC 76 at para. 71 Sullivan J held that a "significant number" need not be considerable or substantial; it was a matter of impression for the decision-maker on the evidence and what mattered was that the number of people using the land in question had to be sufficient to indicate that their use of the land signifies that it is a general use by the local community for an informal recreational use, rather than occasional use by individuals as trespassers.

    Any Locality or any Neighbourhood within a Locality

6.10 The insertion of "neighbourhood" into section 22 of the CRA 1965 was intended to apply more flexibility to the issue of "locality" and mitigate the strict legal test that had been applied in some cases.

6.11 Nonetheless "neighbourhood" has to be given some sensible meaning. A locality is not an arbitrary line on a map; it means an administrative unit. A "neighbourhood" within a locality means an area with a sufficient degree of cohesiveness - see R(Cheltenham Builders Ltd v South Gloucestershire DC [2003] EWHC 2803 (Admin).

    (iii) That use has to have been carried out for at least 20 years up to the date of the application

6.12 The House of Lords in Oxfordshire County Council v Oxford City Council [2006] 2 WLR 1235 has confirmed that the user as of right had to continue to the date of the application.

6.13 So in this case the relevant 20 year period, as accepted by both the Applicant and the Objectors is 20 May 1994 to 20 May 2004.

    (iv) That use has to have been as of right throughout that period

6.14 To be "as of right" the use must have been carried out:

      (i) Without permission

      (ii) Without secrecy

      (iii) Without force.

6.15 Permission can be granted either expressly or by implication but not all implied permissions are inconsistent with a use as of right: see R(Beresford) v Sunderland City Council [2004] 1 A.C.889. In Beresford the House of Lords held that the actions of the Council in installing and maintaining double rows of wooden benches around the sides of the sports arena did not in the circumstances defeat the claim to use of the Sports Arena as of right. In his speech Lord Scott stated:

    41. The present case is concerned with implied permission. The installation and maintenance of the double rows of wooden benches round the three sides of the Sports Arena and the regular cutting of the grass by the owners of the Sports Area evidenced a clear enough willingness that the public should resort to the Sport Arena for recreational purposes. Indeed, it can reasonably be said that these acts encouraged the public to do so. Mr Petchey has submitted that since the public resorted to the Sports Arena pursuant to an implied permission from the landowners, their use of it during the 20 year period failed the nec precario requirement and was not "as of right".

    42. MrLaurence QC, submitted that although use pursuant to an express permission would negate use "as of right", use pursuant to a permission that was merely to be implied would not do so. Implied permission, he submitted, was to be equated with mere acquiescence or toleration on the part of the landowner. None of these, he submitted, would disqualify the use from being use "as of right". Only an express permission would render the use precario.

    43. My Lords I believe this rigid distinction between express permission and implied permission to be unacceptable. It is clear enough that merely standing by, with knowledge of the use, and doing nothing about it, i.e. toleration or acquiescence, is consistent with the use being "as of right". That that is so is accepted by Mr Petchey. But I am unable to accept either that an implied permission is necessarily in the same state as mere acquiescence or toleration or that an implied permission is necessarily inconsistent with use as of right.

      ..............................

    48. I agree with Mr Petchey that, in the present case, the attitude of the successive owners of the Sports Arena to the public use of the land for recreation was more than mere acquiescence or toleration. There was, I agree, positive encouragement. The provision of the rows of benches was to make more comfortable the watching of the activities of others. The cutting of the grass was in order to enhance the enjoyment of the Sports Arena by those using it. I am receptive to the submission that the successive owners had impliedly consented to the recreational use of the land by the public. The users were, in my opinion, certainly not trespassers. But this does not, in my opinion, answer the question whether the use was "as of right" or "nec precario".

    49. Was there any sign that the permission was intended to be temporary or revocable? There was none. The fact that the land was publicly owned seems to me to be highly material. Neither the WDC nor the CNT nor the council were, or are, private landowners. Their respective functions were and are functions to be discharged for the benefit of the public. The provision of benches for the public and the mowing of the grass were, in my opinion, not indicative of a precaratory permission but of a public authority, mindful of its public responsibilities and function, desirous of providing recreational facilities to the inhabitants of the locality. In these circumstances there seems to me to have been every reason for the inhabitants of the locality who used the Sports Arena to believe that they had the right to do so on a permanent basis.

    50. Accordingly, the nature of the implied permission from the landowners that the evidence shows to have been present was not, in my opinion, such as to prevent the use of the Sports Arena by the public from being "as of right". The positive encouragement to the public to enjoy the recreational facilities of the Sports Arena, constituted, in particular, by the provision of the benches, seems to me not to undermine but rather to reinforce the impression of members of the public that their use was as of right.

6.16 "Without secrecy" is based upon the principle that a user cannot acquire a prescriptive right where there has been any concealment or where the enjoyment has not been open.

6.17 If the user has been by coercion or if the user is contentious in the sense that the owner continually and unmistakably protests against it, there is no acquiescence and the user is considered to be by force and cannot be "as of right"7. This will apply if the circumstances are such as to indicate to the user, or to a reasonable user with the user's knowledge of the circumstances, that the owner actually objects and continues to object and backs his objection by physical obstruction or by legal action. Signs can, depending on the wording and circumstances, have a similar effect. Physical obstruction includes fencing and gates; the legal effect will in any case depend upon the nature and circumstances of such obstructions and actions.

    THE ISSUES

6.18 From the above it can be seen that the merits of the use of the land as a village green, whether in isolation or by comparison to any other use of the land, have no relevance to the issues that arise from application of the statutory criteria.

6.19 Having regard to the legal framework outlined above, I identify the following issues:

    1. Has the Applicant demonstrated that land has been used for lawful sports and pastimes by a significant number of people over at least 20 years up until the date of the application?

    2. If so, has the use been as of right throughout that period?

    3. If so, has the use been by a significant number of people who come from:

      (i) A locality; or

      (ii) Any neighbourhood within a locality.

      Has the Applicant demonstrated that land has been used for lawful sports and pastimes by a significant number of people over at least 20 years up until the date of the application?

6.20 I take into account that it is often difficult to recall events many years ago and certainly going back over twenty years. People with contrasting recollections of events can genuinely each believe that they are correct. I have therefore carefully considered these recollections, given both orally and in writing, and assessed them and considered them having regard also to the documentary evidence relied upon. Having done this, my conclusions on this first issue are:

    (i) Up until the death of Stanley Moore in 1982 I have little doubt that the vast majority of users would either have avoided his land altogether or would have kept to the designated footpaths8. Mr Carlin's evidence about Mr Stanley Moore being a very strange and changeable man supports the impression that people would have been apprehensive about using his land and wary of straying from the footpaths if they did actually use them. Those walking the footpaths with dogs would have been likely to have kept them on the lead. That was clear from some of the Applicant's witnesses who recall the land when Mr Stanley Moore was alive.

    (ii) Following his death, the evidence clearly demonstrates in my view that it was likely that farming activities did continue for a short period. There seems little if any dispute that David Moore farmed the land until 1985, although my impression was that he did not occupy the farmhouse at that time. The hay crop was, the evidence from Mr Mooney indicates, taken by another farmer in 1986. I note that Mr Damm, for example, said that he wouldn't interfere with what happened on the farm. He couldn't remember when he started going onto the fields but he said that it was when the farm became neglected and abandoned.

    (iii) I note the force with which Cllr Bright and Mr Shepherd have claimed that there was use of the application land in 1984 and onwards. I also note the reliance that they place on the letter produced by the Applicant, dated 7th November 1985 from Mooney Building Co. (So'ton) Ltd to the Totton and Eling Council Town Clerk. In that letter Mr Mooney stated:

      "We have become increasingly concerned over the past 12 months on the destruction of fences on the above land, to say nothing of the destruction of the Farm Buildings themselves. We are also concerned over the way in which the public have taken it upon themselves to wander at will over all areas of the land and that they are not restricting their walks to the designated footpaths.

    (iv) It is my clear impression of all the evidence that following the death of Mr Stanley Moore people were likely to have eventually become more relaxed about using the footpaths over his land. However, the land was still occupied for farming as I have concluded above. Mr Mooney had purchased the land and was keen to pursue residential development upon it. It is clear that the farmhouse itself began to decline and become derelict after Mr Moore's death and probably more rapidly once David Moore stopped farming the land.

    (v) As is unsurprising in such a situation, particularly perhaps with the adjacent school, trespass became a problem - Mr Newman recalled that there were attempts to mend the fencing but the school children just pulled it down. That has been referred to by witnesses both for the Objectors and the Applicant.

    (vi) The Applicant relied in his Closing Submissions upon the use of the land by Mr and Mrs Jones. However, my understanding of their evidence was that any use of the blue (application) land was in the 1990s and not 1980s.

    (vii) Much of the oral evidence was consistent in my view with the use of the application land in the mid 1980s being very largely confined to footpaths (see e.g. that of Mrs Farleigh).

    (viii) Mr Mooney, in his evidence in-chief, acknowledged that there were problems of people entering the land in 1984 but said that he did not need to do much until the end of that year when damage was beginning to be created. As the Applicant pointed out9, Mr Mooney had clearly been exasperated in 1988 by the failure of the fence repairs to keep people off the land and he stated in a letter to the County Council's Recreation Department that "You will appreciate that to carry out any further repairs would be a complete waste of time and money and we do not intend to do anything at all, at this present time"10. Mr Mooney told the Inquiry, under cross-examination by Cllr. Bright, that the problem of trespassers had become far more serious by 1988 which led to the decision in 1989 to dig ditches.

    (ix) I note that Mr Andrews said that the land had become totally disused in 1984 by which time he diverted off the footpaths. However, I do with respect wonder whether that is a reliable recollection given that he did not appear to remember the hay crop, the last having been the evidence indicates in 1986. Further, his recollection was that there was virtually no difference between the current use and that in 1983/4. On all the evidence provided to the Inquiry I must say I found that very unlikely. It is my strong view that the increased use did not take place until later. There may well have been an increased use arising from knowledge of the development proposals, as suggested by Mr Carlin, but it is my view on all the evidence that at first that was likely to be mainly use of the footpaths.

    (x) Clearly there was some trespass which, as I indicate above, Mr Mooney acknowledged. There were suggestions of use of the land (both by witnesses and in the survey forms) beyond just the footpaths and beyond just walking in and from 1983/4. However, even if I accepted these as accurate recollections, the evidence provided did not in my view come close to indicating that there was sufficient use of the whole land, or any significant part of it, certainly not by the mid 1980s (1985-7), and probably not even in the later 1980s, to form the basis for a claim of use of the application land as a whole for lawful sports and pastimes.

    (xi) I therefore consider that the letter written by Mr Mooney in 1985 has to be interpreted in the circumstances in which it was written. Mr Mooney was, as I felt from the evidence, fairly actively guarding his asset - this is also borne out by the measures which I conclude he took to secure the land, as I detail below under the issue of "as of right". In answer to my question Mr Mooney told the Inquiry that in 1984 he himself was probably at the site, although not all day, once or twice a week. Also the land was still being actively farmed at that time.

    (xii) He was obviously sensitive to the fact people were diverting off the designated paths at all. His use of the words "wander at will all over the land" need to be seen, in my view, in that context.

    (xiii) There is no question that eventually the use of the land, as opposed to just the footpaths, for lawful sports and pastimes has increased. The Objectors have accepted that "There is no dispute that certainly from the early 1990s that there has been extensive use of the land"11.

    (xiv) My impression of the evidence is that Mr Mooney was keeping a reasonably careful watch in the circumstances on the land from the time of purchase through the 1980s.

    (xv) In addition, the aerial photographs produced by Mr Groom, although to be treated with caution and along with all the other evidence, are in my view broadly consistent with my clear impression of the witness' recollection12. They indicate, as far as one can reasonably tell, that more intensive use of the land took place in the 1990s. However, given my clear impression of the evidence of those who had direct knowledge of the land at the relevant time, I haven't felt it necessary to place a great deal of importance on these photographs. I have also taken into account Mr Shepherd's photographs but they don't alter my view indicated above.

    (xvi) Further, the Report of the planning Inspector, Mr B Smith, of December 1986, into the appeal by Mooney Building Co. (So'ton) Ltd against the refusal by New Forest District Council to allow its planning application for residential development on land at Testwood House Farm, is of some relevance13. The Report followed the public Inquiry held by that Inspector on 5 days in July 1986. That application was for land that included part of Mr Shepherd's village green application site but also Strouds Green (shown as red land on some of the plans/photographs) which is of course now developed for housing. I accept that the contents of the Report should not be taken out of context or as conclusive, as they must be considered together with all the evidence. However, two aspects are relevant:

      (a) In paragraph 6 of his report, the Inspector records that "The appeal site is bounded variously by post and wire fences, hedges and woodland".14 I do note however that, as the Applicant points out, the appeal site does not cover all of the current application site15, so I treat this aspect of the Inspector's Report, when considered alone, with some caution.

      (b) The Inspector refers to the two public footpaths, 11 and 12, entering the site in the southernmost corner. However, in his Report he does not record any recreational or related use of the land at that time. Nor does he record that any party, including local objectors, was claiming any such use other than the use of the footpaths16. That is consistent with the letters that I have seen from local residents and organisations commenting on Mooney's planning application and appeal at that time17. These letters were written in 1984, 1985 and 1986. Save in respect of possibly one letter which is not entirely clear18, there is no reference to active use of the land save in respect of the footpaths. So, although this of course is not conclusive of the position at that time (the mid 1980s), it does give me a measure of reassurance as to the reliability of the impression I formed from the oral evidence, witness statements and the survey forms.

6.21 In summary, I don't go as far as Mr Groom does where he concludes that any (my emphasis) access to the land was started after 1991 but prior to 199919. However, I do not consider that the evidence has shown on the balance of probabilities that there has been sufficient use of any part of the land, let alone the land as a whole, for lawful sports and pastimes to fall within section 22 of the CRA 1965. I do believe that there was probably an increase in the use of the designated footpaths on the land after the mid 1980s and probably other walking routes developed.

6.22 Further, as referred to again below, there was a period when the gypsy encampment clearly interfered to some degree with the use of the land. It appears to have carried on for up to about 18 months in 1992/3. The degree of that interference is not entirely clear as, perhaps understandably, some users of the land were less intimidated than others; compare for example the recollections of Mr Blake and Mr Shepherd with that of Mrs Farleigh (see paragraph 4.7 above). However, for the avoidance of doubt I should make clear that my conclusion above on the first issue does not take into account the period when the gypsies were in occupation of the land.

      Has that use take place as of right throughout the relevant period?

6.23 If my conclusion on the first issue is accepted then the Applicant is not able to satisfy the statutory criteria, whatever view might be taken on the "as of right" issue.

6.24 However, in case a different view is taken by the Registration Authority on the first issue, I now set out my conclusions on the "as of right" issue.

6.25 The Objectors claim that any use for lawful use and pastimes could not have been "as of right" for the following reasons:

    (i) Between 1983 until the end of the 1980s Mr Mooney took steps to secure the land from trespassers - this included, it was claimed, repairing of fences; erection of signs; writing a letter to local people in July 198420; and in 1989 digging ditches and creating bunds to keep people from coming onto the land. Mr Mooney specifically referred, in his evidence in-chief, to the area known as the Collect being a particular area where people had tried constantly to get onto his land. He said that fences were put in to try to stop this but the ditches weren't created until long after that - these were created inside footpath 11 in 1989, Mr Mooney stated. The Objectors also rely upon Mr Mooney's letter dated 20 August 1987 and plan indicating where signs prohibiting entry are said to have been prominently displayed21. However, I note that the evidence that these signs were actually put up (other than the two relating directly to the farm buildings and main entrance) only came from Mr Mooney. Neither Mr nor Mrs Jones could remember other signs; nor could anyone else.

    (ii) There was evidence of people pulling down fences (e.g. Mr Whiting); Mr Newman recalled "sneaking through" the fences.

6.26 The Applicant disputes this. He contends that there was no fencing that precluded easy entry. He also contends that there were no signs except on the farmhouse itself. It was also clear from the evidence that, notwithstanding the ditches dug in 1989, local residents were able to gain access to the land.

6.27 There is, as the Applicant contends and I have pointed out above, no corroboration of the signs which Mr Mooney says were erected at the boundaries save for the two signs (one of which can still be seen on a tree) in proximity to the farm buildings.

6.28 Even in the absence of these other signs, however, it was my clear impression from all the evidence, as I have concluded above, that following his purchase of the land in 1983/4 Mr Mooney kept a reasonably careful watch in the circumstances on the property until at least the late 1980s. Notwithstanding the belief of some of the local residents to the contrary, I accept that Mr Mooney did mend the fencing and that it was broken down again. It therefore seems to me in the period 1984-1986/7 any use would have been contentious and indeed on some occasions by actual force by some pushing down fencing. As Mr Shepherd cast some doubt on whether the letter that Mr Mooney says he sent to local people making clear the land was private, was received by him or others, I have not taken that into account. Nonetheless, it is my view that Mr Mooney took what I would consider to be reasonable steps in the circumstances at that stage to secure his land. It is my view therefore that at that stage any use that there was has not been demonstrated to have been "as of right".

6.29 It is clear that the situation became difficult for Mr Mooney and by 1987/8 he was a little exasperated with the intrusion of people onto his land. He conceded, as seen from his 1988 letter, that fencing was of little use. However, he did not give up trying to keep the land secure. He continued, as it seemed to me on the evidence, to continue to contest the entry of the public onto his land by the digging of ditches and the creation of bunds. I acknowledge that this would not have precluded everyone from the land. I also acknowledge that part of the motivation was to keep out gypsies, although they did eventually come on the land for about 18 months. However, it, in my view, was a part of a consistent pattern of conduct on the part of the land owner which was sufficient to indicate that he did not accept the use of his land by the public. In my opinion most people should and would also have been aware that he was trying to keep the public off the land.

6.30 As I indicated above, it is not easy to be conclusive on the implications of the period of occupation by the gypsies based on the evidence that I have before and I don't believe that it is necessary or helpful for me to draw a final conclusion on this aspect. All I would wish to say is that I am not convinced that the gypsy use precluded all use of the land for lawful sports and pastimes and I would have been reluctant to recommend rejection of the application, on the evidence I had before me, on that aspect alone. However, I repeat that it is not an easy issue in my view.

6.31 Turning to the recent signs, the Applicant contends that the new signs and fencing were erected in May 200522. The Objectors contend that the fencing of the area and provision of the gates took place in March/April 2004. In the light of Mr. Groom's oral evidence I didn't understand the Objectors to be contesting that the signs were erected in March 2004.

6.32 If the Applicants' contention is correct then the erection of the current signs and gates and fencing took place outside the 20 year period applicable to this application and thus are not relevant to the determination of this application.

6.33 However, if the erection took place within the 20 year period, the issue arises as to the legal effect of the gates and fences. It was submitted on behalf of the Objectors that the fences and gates were being installed at that time (Spring 2004) to restrict access to the site to stop the motorbike nuisance but also to make clear that permission was now given to the public to use the site for open space purposes - "The erection of fences and gates, were a clear assertion that the public were now permitted access to the land but that the Council were restricting access to pedestrian use"23.

6.34 Surprisingly, there was no direct evidence from the Objectors as to when the gates and fencing were actually constructed. Again this is a difficult issue to be conclusive on. However, Mr Shepherd was adamant that the fencing and gates did not come before his application and on the evidence before me I would accept that.

6.35 If that conclusion is accepted, then the issue of permission being given by the gates does not arise as it would have happened outside the relevant 20 year period. The issue on implied permission is not straightforward as the Beresford decision demonstrates. The positive encouragement for use of the land by people on foot (and excluding those on motorbikes) by the installation of the gates is clear. The House of Lords indicated in Beresford that the fact the land was owned by the Council was highly material. The issue is whether the positive encouragement given by the Council was consistent with the use being "as of right". Adopting the approach of Lord Scott in Beresford to the facts here, if the use up until that time had been as of right I do not think that the erection of the fencing and gates alone would have done other than to reinforce the impression that the use continued to be as of right. (In reaching that view, I have disregarded the signs which I assume on the evidence were erected in May 2005.)

    If so, has the use been by a significant number of people who come from:

      (iii) A locality; or

      (iv) Any neighbourhood within a locality.

6.36 The Objector originally criticised the Applicant's initial choice of Locality/Neighbourhood on the basis that:

    (1) The area chosen has been different for each of the three applications, although the current area is similar to that of the second application but with differences of detail24.

    (2) The streets in this neighbourhood do not include those recently built by Linden Homes/Kingsoak on the site of the application site in the first application. The claimed site now is therefore physically separated from the neighbourhood to which it is claimed to be attached.

    (3) The collection of streets now chosen for the present application is not a distinct and identifiable community, separate from the remainder of east Totton25.

6.37 Part 3 of the application form refers to the locality as being Testwood. Part 8 refers to the Neighbourhood as being Testwood in the locality of Totton and Eling. The Applicant has relied upon guidance from Paul Johnson of the Countryside Agency.

6.38 I accept that there is confusion over the area claimed to be the locality or neighbourhood. At the outset of the Inquiry the Applicant stated that he was not relying upon plan 7A which was the plan identifying the neighbourhood However, later in the Inquiry and in Closing the Applicant sought to go back on that position and in my view the Objectors are not prejudiced by plan 7A still being considered as the plan supporting the application which shows the claimed neighbourhood/locality.

6.39 I can understand the Applicant's confusion over the new area of residential development at Hawkers. If that were the only factor it would seem to me unfortunate that the only reason that the application should fail, if it were the case, was to be the inclusion or exclusion of Hawkers Close or part of it.

6.40 However, the Objectors' points in respect of the locality or neighbourhood identified as part of the application go beyond that single issue as indicated above. I have some sympathy with the Objector in terms of the contention that the area chosen does not have sufficient "cohesiveness". It is correct that a "locality" is not an arbitrary line on a map; it means an administrative unit and a "neighbourhood" within a locality means an area with a sufficient degree of cohesiveness, as held by Sullivan J in R(Cheltenham Builders Ltd) v South Gloucestershire DC [2003] EWHC 2803 (Admin). It is also correct that the only element of Sullivan J's approach that The House of Lords, in the Oxfordshire case disagreed with was that the neighbourhood must be within a single locality26.

6.41 Hence, although I acknowledge that the law has been amended to avoid an over technical approach to locality and neighbourhood, it is my view that the Applicant has not identified an area that is sufficiently cohesive to satisfy section 22 of the CRA 1965. Whether how that aspect could fairly be addressed and amended if all the other statutory criteria were met, I do not make any final conclusion on.

    OTHER MATTERS

6.42 Notwithstanding my Conclusions above, for completeness I will indicate to The Registration Authority the view that I would have taken on three other matters if they had become determinative.

    The Southern Water Pumping Station

6.43 In opening the Objectors referred to the fact that the land cannot include the Southern Water pumping station. I indicated early in the Inquiry that it was my preliminary view that if the Applicant was able to demonstrate compliance with the statutory criteria contained within section 22 of the CRA 1965 the inclusion in the application of the pumping station could not in fairness defeat registration. The Applicant supported that approach.

6.44 In Closing, the Objectors acknowledged that the Registration Authority, should it decide to register the land, could remove the pumping station from the land it registered27. In my view they were right to make this concession.

Statutory Authority

6.45 I did point out that there was the issue referred to by Lord Scott in Beresford as to whether land acquired and held by a local authority was capable of being used as of right28. The land, as stated above, was acquired by the District Council in March 2004, shortly before Mr Shepherd's application in May of that year29. However, the Objectors did not seek to rely upon this argument and I have given no consideration to it.

    Registration at a date later than the application

6.46 I raised the issue of whether it would be possible to in effect take a different 20 year period than that included in the application. I had in mind for example the situation that would arise if I had concluded, which I emphasise I ultimately have not, that the use had been demonstrated in accordance with section 22 of the CRA 1965 but only from say 1985.

6.47 The Objectors submitted that such an approach was not possible as it would defeat the argument that the 20 year period must end on a set date30. Without reaching a conclusive view on this issue, I have some sympathy with that point.

7. CONCLUSIONS AND RECOMMENDATIONS

7.1 For the reasons set out above I conclude that the Applicant has failed to demonstrate on the balance of probabilities (i.e. that it is more likely than not) that the application land has been used by a significant number of people for lawful sports and pastimes for the period of 20 years prior to the application dated 20th May 2004. The Applicant has thus failed to discharge the burden that rests on him to demonstrate compliance with the criteria in section 22 of the Commons Registration Act 196531.

7.2 Further, in my view the Applicant has failed to demonstrate on the balance of probabilities that any use for lawful sports and pastimes has been as of right throughout the relevant twenty year period.

7.3 Further, the Applicant has not demonstrated that those who did use the land come from a locality or any neighbourhood within a locality within the meaning of section 22 of the CRA 1965.

7.4 Accordingly I respectfully recommend that the Registration Authority refuses Mr Shepherd's application under section 13 of the CRA 1965 to register the 19 acres of land at Testwood House Farm, Totton, Hampshire as a village green.

    STEPHEN MORGAN

    LANDMARK CHAMBERS

    180 FLEET STREET

    LONDON EC4A 2HG 6 June 2008