Archived decisions

Decision Maker:

Regulatory Committee

Date of Decision:

2 September 2009

Decision Title:

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

Decision Reference:

897

Report From:

Director of Culture, Communities and Rural Affairs

Contact name:

Emma Noyce

Tel:

01962-845319

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 Mrs Catherine Baker of Longbridge Road, Bramley for the registration of land known as 'Longbridge Road Play Area' as a town or village green. The landowners object 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 `Longbridge Road Play Area', Bramley as town or village green.

2) Applicant:

Mrs Catherine Baker of Longbridge Road, Bramley

3) Landowners:

Radiotropic Limited and Mr John Bell MRICS; both represented by Larcomes LLP, 168 London Road, North End, Portsmouth, Hampshire, PO2 9DN.

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 0.3 acres (0.13 hectares) of land at the southern end of Longbridge Road. The land is part of the land comprised in the registered title number HP 604615.

5) The application:

5.1. The application was received on the 4^th November 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 "Longbridge Road in the Parish of Bramley" as the relevant locality.

5.2. The application was accompanied by a statement in support of the application, some photographs, maps illustrating the `locality', documents, letters, and a petition. In addition, 9 letters from users, 46 signed statements and a list of 18 signatories each attest to use of the land either by the signatories themselves, and/or members of their families. Typical uses described are `walking the dog', `playing football', `recreation', `playing hide and seek', all of which are lawful sports and pastimes and activities capable of supporting registration of land as a town or village green. However, some of the use described as `walking' 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.

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 30^th January 2009. One objection was received (on behalf of both landowners) 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 continues to be 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: and accordingly 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. The main issues set out in the objection statement are:

i) that the application has not become a new green pursuant to s.15(2) of the Commons Act 2006 because the requirements of s15(2) have not been met. Inter alia, the landowner disputes that a significant number of the inhabitants of the locality have used the land; states that the use of the land has not been as of right; disputes that material evidence of use of the land for lawful sports and pastimes has been provided; denies that the users can be said to come from a locality; states that use of the land was interrupted in 2001 and that there is no qualifying use of the land up to the present date and maintains that an element of the use of the land was more of the nature of use 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 level and nature of the use of the land, and the locality or neighbourhood to which this user relates;

ii) the exact circumstances of the fencing and locking gates on the land, and the effect this had on the nature of user.

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 `Longbridge Road Play Area', Bramley 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 243

Rights of Way Office Room 200

Mottisfont Court

High Street

Winchester