Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

11 March 2009

Decision Title:

Application for registration of land at Chilworth as town or village green

Decision Reference:

606

Report From:

Director of Recreation and Heritage

Contact name:

Alex Lewis

Tel:

01962-846044

Email:

[email protected]

EXECUTIVE SUMMARY

1) Summary of decision area:

1.1. Hampshire County Council is the Commons Registration Authority for the purpose of exercising functions under the Commons Act 2006. An application has been made by Chilworth Residents' Association of Southerly, Chilworth Ring, Chilworth for the registration of land known as `The Playing Field', Chilworth as a town or village green. The landowner objects to the application. The recommendation is that a non-statutory public inquiry be held.

2) Legal framework for the decision:

2.1. S.15 COMMONS ACT 2006

Registration of greens:

s.15(1) Any person may apply to the commons registration authority to register land to which this part applies as a town or village green in a case where subsection (2), (3) or (4) applies.

s.15(2) This subsection applies where -

(a) a significant number of the inhabitants of any locality, or of any neighbourhood in a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

(b) they continue to do so at the time of the application.

s.15(6) In determining the period of 20 years referred to in subsection[...] (2)(a).., there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.

2.2 THE COMMONS (REGISTRATION OF TOWN OR VILLAGE GREENS) (INTERIM ARRANGEMENTS) (ENGLAND AND WALES) REGULATIONS 2007

Consideration of objections

6(1) Where an application is made under section 15(1) of the 2006 Act to register land as a town or village green, as soon as possible after the date by which statements in objection to an application have been required to be submitted, the registration authority must proceed to the further consideration of the application, and the consideration of statements (if any) in objection to that application, in accordance with the following provisions of this regulation.

(2) The registration authority -

(a) must consider every written statement in objection to an application which it receives before the date on which it proceeds to the further consideration of the application under paragraph (1); and

(b) may consider any such statement which it receives on or after that date and before the authority finally disposes of the application.

3) Recommendation:

3.1. That a non-statutory public inquiry be held and the inspector appointed to conduct the inquiry be asked to hear evidence for and against the application and then to prepare a written report advising the Registration Authority whether to accede to or to reject the application.

1) Purpose of report:

1.1. The purpose of this report is to seek approval to the holding of a non-statutory public inquiry into an application to register land known as `The Playing Field', Chilworth as town or village green.

2) Applicant:

Chilworth Residents' Association of `Southerly', Chilworth Ring, Chilworth, Southampton

3) Landowners:

Mitchells and Butler Retail No. 2 Limited, represented by Eversheds LLP, 115 Colmore Row, Birmingham, B3 3AL

Part of the land is thought to be occupied by the Clump Inn Football Club.

4) Description of the land (please refer to the map attached to this report):

4.1. The land which is the subject of the application (`the Land') is shown edged red on the plan annexed to this report. It consists of approximately 3.85 acres (1.56 hectares) of land at rear of `The Chilworth Arms' public house (formerly `The Clump Inn') and having frontage to Manor Road. The land is part of the land comprised in the registered title number HP 451159.

5) The application:

5.1. The application was received on 8 May 2008. It states that the Land should be registered as town or village green because it has been used by a significant number of the inhabitants of a locality for lawful sports and pastimes for at least 20 years and that they continued to do so at the time of the application. The application identifies the civil parish of Chilworth as the relevant locality.

5.2. The application was accompanied by a statement in support of the application, some photographs, maps illustrating the `locality', 52 user evidence forms as some spreadsheet analysis of that user evidence. Typical uses described are `walking the dog', `playing football', `recreation', `walking' and `fetes', all of which are lawful sports and pastime and activities capable of supporting registration of land as a town or village green. However, some of the use by walkers appears to be as part of a longer walk and might be said to be use of the land as a highway rather than as a village green.

5.3.

6) The law

6.1. Under section 15 of the Commons Act 2006 applications can be made to amend the Register of Town or Village Greens when land becomes a town or village green. The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England and Wales) Regulations 2007 sets out the procedures to be followed in respect of such applications. In accordance with those regulations, advertisements on site and in the local press invited objections to the application within the period specified in the regulations: in this case the objection period expired on 24 October 2008. One objection was received (from the landowner) and the Applicant has been invited to address the issues raised in that objection.

6.2. The law relating to town and village greens is complex and in some areas it is still being developed through the courts. Several of the elements of section 15 (e.g. meaning of use `as of right' and `significant number') were addressed by the House of Lords in 2006 in the case of Oxfordshire County Council v Oxford City Council, and the Court of Appeal has very recently explored the effect on an application of deference by users to the landowner's activities in R (on the application of Kevin Lewis) v Redcar and Cleveland Borough Council and another .

6.3. In its capacity as Registration Authority, the County Council is required to adjudicate on the application and to register the application land if there are sound reasons for doing so, or if not, to reject the application. It is for the applicant to prove his or her case and there is no requirement for the Registration Authority to instigate its own research into the application. Nonetheless, there may be disputes of fact and/or issues of law to be resolved or considered before a decision can properly be made. Unlike decisions made on applications for rights of way (which are in many ways governed by similar principles of law), decisions made by this Committee on town or village green applications are not subject to review by the Secretary of State through a prescribed statutory and public process: the decision to accede to or reject an application can only be challenged through the Courts by way of judicial review. It is therefore particularly important that the Registration Authority's scrutiny of the application and any objections is thorough and that this Committee is well informed and advised before the application is finally determined.

7) The objections and the issues:

7.1. The landowner has raised a number of matters in its objection to the application. These are summarised in paragraph 3 of the objection statement, although the subsequent paragraphs expand on the three issues identified in paragraph 3 and raise more specific issues of contention. The three issues set out in paragraph 3 are i) that the application has not become a new green pursuant to s.15(2) of the Commons Act 2006; ii) that prescriptive rights binding on the freeholder cannot be acquired over tenanted land (the land having been let to a football club between 2003 and 2006) and iii) the application is not procedurally in order. Inter alia, the landowner also disputes that a significant number of the inhabitants of the locality have used the land (although it is unfortunate that statistics from the parish of Chilworth in Surrey have been cited in support); points out that no evidence has been produced that user continued to the date of application; denies that the users can be said to come from a locality; states that user for football was authorised by the landowner (and was thus not `as of right') and some user was more of the nature of use of the land as a right of way.

7.2. Officers consider that there are matters of fact and law which need to be considered in more detail, namely

i) the extent to which walkers using the land as a highway, rather than as an area over which they were indulging in lawful sports and pastimes;

ii) the effect on the application of the lease to the football club: whether it is fatal to the application for the reasons given by the objector or if not, the extent of use pursuant to that lease and the extent to which user deferred to the use authorised by the lease;

iii) the exact circumstances of the holding of fêtes on the land (some users say this was with permission);

iv) whether use did in fact continue to the date of application (the user evidence forms pre-date the application. It might be assumed, but it is not proved, that use so continued).

7.3. Officers consider that it would be unsafe to determine the application on the basis of the paper application only and that, in the interests of fairness to both parties, it is appropriate to arrange a non-statutory public inquiry to test the evidence both for and against the application.

8) Recommendation

That , in connection with the application to register land known as `The Playing Field', Chilworth as a town or village green, a non-statutory public inquiry be held and the inspector appointed to conduct the inquiry be asked to hear evidence for and against the application and then to prepare a written report advising the Registration Authority whether to accede to or to reject the application.

Links to the Corporate Strategy

Yes

No

Hampshire safer and more secure for all

Maximising well-being

Enhancing our quality of place

OR

This proposal does not link to the Corporate Strategy but, nevertheless, requires a decision because the County Council, in its capacity as Commons Registration authority has a legal duty to amend the register of towns and village greens in the circumstances described in this report.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

(NB: the list excludes published works and any documents which disclose exempt or confidential information as defined in the Act.)

(Quote list of documents here: e.g. list the relevant letters, memos, etc. and their location)

Document

Location

Files: VG 238

Rights of Way Office Room 200

Mottisfont Court

High Street

Winchester