Archived decisions

In the Matter of an Application to Register

land at Hamble-Le-Rice, Hampshire

as a Town or Village Green

__________________________________________________________________

REPORT

of Miss LANA WOOD

6 March 2009

__________________________________________________________________

Hampshire County Council

The Castle

Winchester

Hampshire

SO23 8UJ

Ref: Elizabeth Ellam

Executive Summary

The application to register the Donkey Derby Field, Hamble-le-Rice, should be refused for two principal reasons:

(1) There is insufficient evidence of use for lawful sports and pastimes during the period 1987-1993.

(2) From 1993 the land was held by Eastleigh Borough Council under its Open Space Act 1906 powers. Use of the land was therefore not "as of right" as required by section 15 of the Commons Act 2006, but was pursuant to the public's statutory right to use land held under those powers for recreation.

In the Matter of an Application to Register

land at Hamble-Le-Rice, Hampshire

as a Town or Village Green

REPORT

of Miss LANA WOOD

01 September 2009

1. The Application

1.1. On 26^th October 2007 Hampshire County Council, as Registration Authority, received an application dated 25^th October 2007¹ from Mr Peter David Oulton of 3 Solent Meadows, Hamble, Southampton, Hampshire SO31 4JH to register land known as Donkey Derby Field as a town or village green. The application was made under section 15(1) of the Commons Act 2006, and the particular subsection and qualifying criterion which were said to apply was subsection 15(2). The application was in prescribed Form 44, and was verified by a statutory declaration of Mr Oulton declared on 25^th October 2007.

1.2. The application land was edged red on a plan appended as exhibit 1 to Mr Oulton's statutory declaration². The location was described as "South of Green Lane and adjacent to East of Solent Meadows, Hamble". The claimed locality was identified as the Civil Parish of Hamble-Le-Rice and was shown on a map appended as exhibit 2 to Mr Oulton's statutory declaration³.

1.3. The justification for application to register the land as a town or village green was stated to be that a significant number of the inhabitants of the Civil Parish of Hamble-Le-Rice had indulged as of right in lawful sports and pastimes on the application land for at least 20 years and continued to do so. A more detailed justification, settled by Mr William Webster of Counsel, was appended as exhibit 3 to Mr Oulton's statutory declaration.

1.4. In response to part 8 of the form, by which the applicant is invited to write the name and address of every person whom he believes to be an owner, lessee, tenant or occupier of any part of the application land, Mr Oulton gave the name and address of Eastleigh Borough Council, and also wrote "it is probable that an arrangement exists between EBC and the local Parish Council for the maintenance of the land or for some other purpose", and gave the name and address of Hamble-Le-Rice Parish Council.

1.5. The application was accompanied by three files containing evidence questionnaires from 55 witnesses, 9 supplementary statements relating to those evidence questionnaires, one further witness statement, and various maps, photographs, correspondence and other documents.

2. The Objections

2.1. The application was duly publicised. The Registration Authority received a notice of objection dated 8^th January 2008 signed by Maureen Field, Assistant Head of Legal and Democratic Services on behalf of Eastleigh Borough Council. The grounds of objection were (in summary):

(1) Eastleigh Borough Council was the freehold owner of the application land. The land formed part of a larger parcel of land which was transferred to the Council on 7^th January 1994 by J.S. Bloor Limited, in pursuance of a section 106 Agreement dated 31^st March 1993, relating to the development of the adjoining land. The transfer of the land contained restrictive covenants as to its use.

(2) The land is managed on behalf of the Council by Hamble-Le-Rice Parish Council under the terms of a Management Agreement dated 22^nd October 2004, for a term of 35 years. The Management Agreement states that the use of the land will be as open space maintainable at the public expense for public use for recreational purposes or such other use as shall have been previously approved by the Council in writing.

(3) The land is fenced and gated. Prior to January 1994 the land was in private ownership and the Council's understanding was that it was locked and gated by the then owner, who gave permission for certain events to be held on the Land. Since January 1994 use of the land has been with the permission of the Council. There has not therefore been use of the land as of right for 20 years.

2.2. The Registration Authority received an objection statement from Hamble-Le-Rice Parish Council dated 8^th January 2008. The grounds of objection were (in summary):

(1) Prior to 1994 the land was in private ownership, and had a locked gate. Permission was always required for public use of the land. J S Bloor purchased the land form the College of Air Training, which closed in 1983. Permission was regularly granted by the land owners for Hamble Regatta and Carnival and, in particular, the Carnival's Donkey Derby, to take place on the application land, hence its name. On 17^th February 1994 J S Bloor Limited transferred the application land (together with the old heather garden and Avery's Field) to Eastleigh Borough Council. From 1994 Hamble-le-Rice Parish Council has managed and held the land under licence from Eastleigh Borough Council.

(2) The five-bar gate into the application land has been kept padlocked since 1994. The key-holders are the Parish Council and the Borough Council's Countryside Ranger. The application land has fences on its north, west, south and east sides, and although the fence on the east side, between the application land and the old heather garden has fallen down, it is still there. There are also two kissing gates.

(3) Since 1994 organisations including the Hamble River Sailing Club, the Hamble Carnival Committee, the Hamble Week Committee, the Royal Southern Yacht Club and the RAF Yacht Club have requested permission from the Parish Council to use the application land. Requested uses have varied from community activities, such as the Carnival or Hamble Week, to parking for sailing and yachting events, fayres and one-off events such as the Sea Britain Heritage Festival on 24^th and 25^th September 2005. Organisations using the application land are requested to put up a sign stating the time and date the field gate will be locked. The Parish Council has also permitted use of the application land to ease local parking problems on summer weekends and Bank Holidays, subject to certain criteria being met. The Parish Council's formal signed minutes contain details of permissive use of the application land by various local organisations from 1994 to date.

(4) So far as user was concerned, any photographs which show vehicles should be discounted, as vehicles were only able to access the application land when permission has been given for its use and the gate unlocked. Prior to 1994, the application land was in private ownership, and the only access was a field gate which was kept locked by the owners. The only use of the field was permissive use, pursuant to permission granted by the land owner for community events. After 1994, the Parish Council only had the field rough cut prior to use by permission and the application land was unsuitable for dog walking, picnics, sunbathing or other recreational activities which the applicant claimed had taken place regularly: a photograph was appended dated summer 1994.

(5) The application land had not been freely available to the public in the weeks when Hamble Regatta and Carnival or other major events had taken place: on those occasions its use had been permitted only for specific events and/or dates during those events.

2.3. The Parish Council submitted a supplemental statement of objection⁴. The further grounds of objection were:

(6) The Parish Council did not believe that the Applicant had proved that the application land had been used for lawful sports and pastimes by local inhabitants for a continuous period of 20 years. The Parish Council had evidence to the contrary covering the period 1987-1994. Prior to 1994 Donkey Derby Field was entirely different: it was much larger, as it included the area now developed as Solent Meadows. There were times during the 20 years preceding 2007 when it was totally inaccessible. Some of the evidence on behalf of the applicant had included the time when the College of Air Training owned and used the land: the College's gardeners were at that time living and working there. It was clearly impossible that there was public user as of right at that time: this cast doubt on their whole evidence.

(7) The questionnaires submitted by the applicant lacked exact dates detailing when the activities listed were observed: it should not be assumed that any of the activities was seen prior to 1994, unless the witness specifically states that they were. Further, unless a significant event has happened historically or in family life, it is very difficult for anyone to answer accurately how long something has happened. The answers given were not definitive in relation to the dates and/or permission for each activity. The instructions given by the applicant on completing the questionnaire were misleading and informed the respondent how to answer the questions. The Parish Council suggested that anyone asked to complete a form in order to protect a piece of open space from development would be likely to do so. The Parish Council submitted that had the respondents known that there was no threat to the existing public use and enjoyment of Donkey Derby Field, and had they had knowledge of the protective covenant, and that the 28 days' use for parking would be prevented, most of them would not have completed the form.

(8) There was general knowledge amongst local people that parts of the village were privately owned, and that when the land finally came into public ownership, there was general knowledge, and acceptance of the development of Solent Meadows by local inhabitants, because public access would be permitted.

(9) The applicant's photographic evidence was lacking: it either related to the period when the land was public owned, or showed community events which took place with permission. The Parish Council referred to the 1988 aerial photograph, and pointed out that it did not show any paths across Donkey Derby Field or worn areas indicating access points, whereas it did clearly show paths on adjacent land.

(10) The management of the application land by the Parish Council, including maintenance and notices, its ownership by Eastleigh Borough Council as open space, and the fact that the parishioners refer to the Parish Council in connection with it, all highlighted that public access to the land is permissive.

2.4. The Registration Authority also received written objections from the following individuals: Mr Peter Nicholson C.B.E. of Mere House, Green Lane, Hamble, Southampton SO31 4JB; Councillor William J. Pepper of 33 Westfield Close, Hamble, Southampton SO31 4LG; Mr E.T. Hill of 13 Cirrus Gardens, Hamble, Southampton SO31 4RH; Ms Peggy Dorothy of 7B New Road, Netley Abbey, Southampton, Hants; Mr Bernard and Mrs Amanda Stebbing of 56 Hatherley Road, Winchester SO22 6RR; Mr and Mrs J.M. Holland of 17 Spitfire Way, Hamble, Southampton SO31 4RT; Ms Victoria Weston of Rookesbury Court, Church Road, Newtown, Hampshire P017 6LE; Mr David Criswick of "Piper's Lea", 4 Hook Close, Ampfield, Romsey, Hampshire SO51 9DD; Mr Jonathan Sherwill of 18 Lionheart Way, Bursledon, Southampton SO31 8GG; Mr and Mrs C Shawcroft of The Ferry House, The Green, Hamble, SO31 4JB. I have summarised the content of the individual objectors' objections below.

3. The non-statutory public inquiry

3.1. I was appointed by the Registration Authority to hold a non-statutory public inquiry into the application and to report in writing to the Council with my recommendation as to whether the Council should accede to or reject the application. I gave Directions on 18^th December 2008, including a direction that any of the individual objectors who wished to appear at the inquiry as a party should notify the Registration Authority of his desire to do so.

3.2. I held the Public Inquiry at Bursledon Village Hall, Bursledon, Southampton SO31 8BZ on 9^th, 10^th, 11^th and 12^th March 2009 and 28^th April 2009. Bursledon Village Hall is a comfortable and well-equipped venue in the neighbouring village to Hamble-le-Rice. Provision was made for an evening session to be held on Monday 9^th March 2009 to enable witnesses and members of the public who wished to give evidence to the inquiry but who were unable to attend the inquiry during working hours to appear, and those who wished to appear were requested to notify the Registration Authority of their intention to do so in advance. The inquiry also sat late on Wednesday 11^th March 2009 to accommodate other witnesses.

3.3. I carried out an accompanied site visit on 28^th April 2009 and an unaccompanied site visit prior to the start of the inquiry.

3.4. Mr William Webster of Counsel, instructed by Paris Smith LLP, solicitors, represented the Applicant. Mr Richard Ward, the First Objector's Head of Legal and Democratic Services represented the First Objector, Eastleigh Borough Council. Mr Edmund Robb of Counsel, instructed by Hedleys Solicitors LLP, represented the Second Objector, Hamble-Le-Rice Parish Council. The following individual objectors who had notified the Registration Authority that they wished to be parties to the inquiry appeared in person: Mr Nicholson, Mrs Dorothy, Mrs Weston and Mr Sherwill. I was most grateful to all the advocates and to the individual objectors for their helpful submissions and for their good humour and patience during the course of the inquiry.

3.5. I was ably assisted during the inquiry by various officers of the Registration Authority including Ms Sylvia Seeliger, Ms Amanda Hull, Mr Andrew Jones, and Ms Rohan Seeliger. I am grateful to them for their support and efficiency.

4. The Applicant's Evidence

4.1. The witness evidence on behalf of the Applicant falls into two parts. First, there is the evidence of witnesses who gave oral evidence to the public inquiry and were subject to cross-examination. Inevitably, this is the evidence which carries the most weight and which I must consider in detail. I heard oral evidence from 23 witnesses on behalf of the Applicant. I have set out the oral evidence on behalf of the applicant in detail in Appendix 1 to this Report, and here set out a summary of the most relevant evidence only.

4.2. Second, there was the evidence of approximately 56 individuals who did not give oral evidence to the inquiry. This evidence does not carry as much weight as the evidence of those witnesses who gave oral evidence, but must nevertheless be taken into account. I have summarised the content of the evidence forms and other written evidence provided by each of the witnesses who provided written evidence but not oral evidence in the table included within Appendix 1.

4.3. A number of witnesses who gave written evidence on behalf of the applicant, later indicated that they wished to withdraw their support for the application. In these instances I have summarised the evidence, and included in the table a note stating that the evidence was withdrawn or amended, and the grounds for withdrawing the evidence, if specified.

4.4. Mr Oulton, the applicant (3 Solent Meadows from 1995): Mr Oulton had used the application land since 1995 for walking. His grandchildren use the land for games and recreation when visiting. He was told during the conveyancing process when buying his house that the application land was going to be public open space.

4.5. Mr Deaville had used the land regularly since 2005 for dog walking. He had use the land occasionally between 2002 and 2005. He had not made any substantial use of the land before 2002.

4.6. Mr Russell (had used the land on occasion since 1994 for walking and dog walking. He took part in the tug-o-war at the 1997 Hamble Week event on the application land. He did not use the land before 1994.

4.7. The Yates family (West Cottage from 1989): Mr Yates (senior) had lived at his present address, overlooking the application land, since 1989. He and his family were able to access the land from a gate in the southern boundary fence of their property and did so from the time they moved there. Others use the field predominantly to walk through with or without dogs, although since the grass has been regularly cut the land has been used for more general recreational activities including dog training, football (both soccer and rugby), kite flying, cycling, picnicking, blackberry picking, camping, model aircraft flying, bird watching, jogging and rounders. It would not have been possible to enjoy such activities at the same time as the 1993 Hamble Week was taking place on the land, although people could still have walked through the field. Mr Yates did not give any clear evidence of use of the land by others for lawful sports and pastimes before the grass began to be cut regularly, although people had walked through the land before that time. Access was possible via the land on the corner of Green Lane and School Lane (now part of Solent Meadows). Mr Yates (junior)'s recollection of the early years of living at West Cottage was unclear, but I concluded on the balance of probabilities that it was likely that he had ridden his bicycle across the application land from the gate in his parents' garden fence to a stile in the fence on the southern boundary of the application land as part of a longer circuit from 1989. He did not remember Ms Edwards' horses in the field and I conclude that he did not use the land frequently in the early 1990s. I was satisfied that Mr Yates had used the land for the other activities he mentioned of Frisbee, kickabout football, baseball practice, blackberry picking, dog walking and walking, and relaxing with friends, but I was not satisfied that he made any substantial use of the land for these purposes before 1993. Further and in any event, to the extent that he did use the land for those purposes before 1993, in my judgment it is likely that he and his companions gained access to the land via the gate in his parents' garden fence. I do not therefore consider that such use would have had the appearance of the assertion of a right on the part of the local inhabitants generally to use the land for lawful sports and pastimes.

4.8. Mr and Mrs Dewsbury (1 Solent Meadows from 2007, previously Spitfire Way from 2000): Mr Dewsbury had used the land occasionally for recreation since 2000 to play informal rugby, fly kites, pick blackberries and to walk. He had also taken part in practice fox calls. He did not know the land before 2000. Mrs Dewsbury has used the land for walking, picking blackberries and to play with visiting children since 2000. She did not know the land before 1999.

4.9. The Rogers family (2 Solent Meadows from December 1994, previously High Street, Hamble): Mrs Rogers used the land for dog walking from about 1994, and to pick blackberries occasionally since moving to her present address in Solent Meadows. Mr Thomas Rogers occasionally trespassed on the application land as a child when bird watching. Between 1994 and 1995 he crossed the land on a track through the long grass. There was then a gap in his use until he returned home to live in 2004, since which time he has used the land frequently for dog walking, kite flying, model aircraft flying, golf practice, touch rugby and bird watching. Mr Hugo Rogers crossed the field to gain access to the woodland to the east of the field as a child before moving to Solent Meadows, but not when there were horses in the field. This was probably in the late 1980s. At that time he accessed the land from the corner of Green Lane and School Lane. He has used the land since his family moved to Solent Meadows, and from 1998 when he has been visiting his family to play with his dogs, for dog walking and to fly model aircraft with his brother.

4.10. The Curry family (5 Solent Meadows from 1994): Miss Curry had used the land for dog walking between 1994 and 1999 and for occasional walking from 1999 to 2004, and from 2007 to date. She did not use the application land before 1994. Mr Curry had used the land for recreation from 1994. He understood that he was entitled to use it because it was public open space. He did not know the land before the Solent Meadows houses began to be built in 1993. Mrs Curry used the application land for dog walking between 1994 and 1999, and after that for walking.

4.11. Mr Early (12 Cliffe Avenue): Mr Early had used part of the application land, along with other land in the vicinity, as a child in the late 1980s to play with a friend who lived in The Square. He attended events on the application land throughout the relevant period. The earlier events took up the field generally. He thought that the more recent events, and in particular the 1997 and 2000 events, were smaller in scale than the 1993 event. He has used the application land more recently, as an adult (after, at the earliest, 1994), for walking and watching nature.

4.12. Mr Garrard (4 Solent Meadows from 1995, previously had a second home at Priory Close, Hamble from 1988): Mr Garrard had used the application land to walk and with visiting grandchildren since moving to his present address. He used it on extremely infrequent occasions, mainly to walk across, before that date.

4.13. Mr Hall was the man behind the company which developed the five houses in Solent Meadows. He first visited the site in late 1992, and his company purchased the site on 31^st March 1993. The building works were sub-contracted to Galaplan Limited. Ground works on the site began in about June 1993. The last house was sold in August 1995. Mr Hall produced a series of photographs of the development site and the application land dating from this time and an undated survey plan of the development site and part of the application land.

4.14. Mr Maple (3 Satchell Lane from his birth in 1970): Mr Maple played as a child with a friend who lived in West Cottage on the application land. In my judgment that activity would have taken place during the late 1970s and early to mid 1980s. They accessed the land by climbing over a fence. There was a gap between his use as a child and his use as an adult. As an adult Mr Maple has walked through and past the land. He took place in the tug-o-war event at the 1997 Hamble Week event.

4.15. Mr Marsden (Meadow Lane, Hamble from 1995, previously Old Priory Close, from 1988). Mr Marsden had not used the land for sports and pastimes. His use (the extent and period of which was unclear) was for dog walking and walking and was right of way-type user.

4.16. Mr Ramseyer (Manor Cottage from 2000. Manor Cottage was owned and occupied by his parents 1982-2000). Mr Ramseyer has used the application land for walking since living at his present address, and used it infrequently, as a visitor of his parents, from 1982 to 2000, to walk across. I was not satisfied that he had made any use of the land for lawful sports and pastimes.

4.17. Father Travers (High Street, Hamble from 1995): Father Travers had walked on the application land occasionally with the late Mr Rogers. He did not know the land before 1995. As Parish Priest of Hamble-le-Rice he had sought and obtained permission to use the land in connection with various church events since 1995.

4.18. Mrs White (Sylvan Lane, Hamble from 1988): I was not satisfied that Mrs White had made any use of the application land for lawful sports and pastimes. She had used the land to walk across (right of way-type user) from about 1994.

4.19. Mrs Aylward (Jasmine Cottage from 1986): Mrs Ayleward is registered blind and has been visually impaired since before she moved to her current address. Her property has a gate which gives access into the area known as the Heather Garden. She understands that she has been taken, via that gate, to the application land, on occasion, since moving to her present address. She had not been aware of there being horses on the application land at any time when she visited it. After the kissing gates were installed she had been taken onto the application land via those gates. She said that the land had been nicely maintained for about the last 5 years. I was not satisfied that she had used the land throughout the whole period that she has lived at her present address, and consider it likely that the explanation for her not remembering the presence of horses is that she was not taken to the land when the horses were there.

Documentary evidence provided by the applicant

4.20. I have re-read all the evidence provided by the applicant whether specifically mentioned or not, and here set out a summary of those documents which I considered to be most relevant only.

4.21. A/1/11 was the Official Copy Entries of Title of Title Number HP477184, which show that the First Objector, Eastleigh Borough Council, has been the registered proprietor of land including the application land since 17^th February 1994.

4.22. The Applicant produced a substantial number of photographs, most of which are referred to in the evidence. The vast majority were taken during the summer of 2007. The earliest photograph was dated 15^th July 1994, (after the acquisition of the land by Eastleigh Borough Council), and shows that the grass had at that time been allowed to grow as high as the fence at the rear of West Cottage.

4.23. A/1/101 was a map showing the boundary of Hamble-le-Rice Civil Parish, the claimed locality.

4.24. A/1/102-109 was correspondence between Mr Oulton and Mr Underdown, chairman of the Parish Council. Mr Underdown's letter of 3^rd April 2007 enclosed historic Regatta and Carnival programmes dating from 1993, 1970, 1973 and 1975. The 1993 programme shows that it was planned to use the application land on 10^th July 1993 for car parking, as an arena and for a public address system. The 1973 and 1975 programmes refer to use of "the Carnival & Regatta Car Park Field" for a Donkey Derby and Children's Sports.

4.25. A/1/117 was an undated survey plan of part of the application land and the land now known as Solent Meadows, provided by Mr Hall. The survey plan shows that at the time the survey was carried out the northern boundary of the field was fenced with a wood paling fence, in which there was a gate at the north-western corner (giving on to the land now to the north of Solent Meadows) and a vehicular gate leading off Green Lane. The western boundary of the field (to the west of the land now occupied by Solent Meadows) was marked by a bank and post and wire fence. The southern boundary was marked by a ditch, and the boundary around West Cottage was a concrete post and chain link fence. On the northern part of the land now occupied by Solent Meadows four buildings were shown. An area of dense brambles and scrub was shown on the southern part of the land now occupied by Solent Meadows. Within the field there was a wire post and barbed wire fence, running along the southern end of the field inside the ditch, and along the western side of the field around the brambles, then east west towards the western boundary, inside the western boundary (north-south), then west-east to the south of the buildings, and finally south-north, to join the wooden paling fence at a point to the east of the pedestrian gate. Where the fence ran west-east to the south of the buildings a stile was marked. There was also a wire post and barbed wire fence around the mouth of the vehicular gate. Thus most of the area now occupied by Solent Meadows was fenced off from the remainder of the field. The plan does not show whether the post and barbed wire fence extended along the eastern side of the field. Had it done so, the area within it would have been secured, with access to it being via the pedestrian gate in the north-west corner, across the northern part of the area now occupied by Solent Meadows, and into the secured area via the stile.

4.26. A/1/118-122A were photographs taken by Mr Hall in about 1993. They were taken to show the Solent Meadows site before development. Some of them also show parts of the application land. Photographs A and B show a gap in the hedge where the survey plan showed a pedestrian gate. There is a signpost pointing to the west which reads "Footpath to Hamble Common & the Coast" on the northern (road) side of the gap. Photograph D shows the view across the application land to the south towards the river. Photographs F, H and J all appear to show the same shed-like building. K, the enlarged version of J shows what appears to be the stile shown on the survey drawing in the west-east section of the fence to the south of the buildings. I therefore conclude that these photographs all show that part of the land now occupied by Solent Meadows that was shown on the survey plan as fenced with a post and barbed wire fence together with the application land. F shows a horse on this part of the land. G and I must have been taken later, as the grass has been cut. E was clearly taken after the development began.

5. The First Objector's witnesses

5.1. I heard oral evidence from three witnesses on behalf of the First Objector. The First Objector also relied on the written evidence of Ms Norman. I have set out the evidence in detail in Appendix 2 and here summarise the most relevant points of the evidence of those witnesses who gave oral evidence.

5.2. Mrs Muffett is the clerk to Hamble-le-Rice Parish Council, the Second Objector. Mrs Muffett and her family did not use the application land before 1994 unless it was opened for a community event. Mrs Muffett said that the Parish Council had organised a public meeting when JS Bloor applied to build the houses in Solent Meadows to consider the application. The parishioners were in favour of the application being granted because it included a proposal that the remaining land held by Bloors, including the application land, would come into public ownership and public access to it would be permitted. The land had been managed by the Parish Council since 1994. Since that date various community events had taken place on the application land by permission of the Parish Council, and in addition the land had been used by parking for up to 28 days per year. Mrs Muffett was a member of the Carnival Committee in 1993 and 1996, and said that on each occasion the Committee sought permission to use the application land.

5.3. Mr Warren is the First Objector's Principal Valuer. He is responsible for the management of the Council's land and property and of its land Terrier records. Mr Warren stated that it is the policy of the Council to hold land conveyed to it as open space land under the provisions of the Open Spaces Act 1906. In his view it was clear that the land had been acquired under the Open Spaces Act power. He relied on the terms of the Transfer as showing that the land was acquired under the Council's Open Spaces Act power.

5.4. Mr Mould Ryan is employed by the First Objector and between 1989 to 1992 worked on the Itchen Hamble Countryside Project. He gave evidence as to the creation and signing of the Hamble Common Footpath Link, and in particular, that the sign on the corner of Green Lane and School Lane was pointing in the correct direction.

Documentary evidence relied upon by the First Objector

5.5. I have re-read all the documents submitted by the First Objector, whether specifically mentioned or not, and here summarise the most relevant.

5.6. The First Objector provided a copy of the section 106 agreement dated 31^st March 1993 and made between Eastleigh Borough Council and J S Bloor Limited. The application land, the land to the north of Solent Meadows, originally forming part of the Donkey Derby Field, and the heather garden and Avery's Field were together defined as "the Open Space Land". By clause 3(1) J S Bloor Limited covenanted not later than 28 days from the date of grant of planning permission for the development of Solent Meadows to transfer the Open Space Land to the Council subject to the conditions and together with the rights set out in the Schedule. Paragraph 4 of the Schedule provided:

"The Open Space Land shall be transferred subject to a covenant to be given by the transferee thereof with the Owner that the transferee will not use the Open Space Land for any purpose other than for public open space but such covenant shall not prevent:

(a) use for play areas or areas for formal games or the erection of one building for interpretation and information purposes on any part of the Open Space Lane except that part shown coloured yellow on the plan annexed hereto and thereon marked 3 [the application land, the land to the north of Solent Meadows and a triangle of Avery's Field, immediately to the south of the application land].

(b) the enhancement of the Open Space Land for the purposes of conservation"

5.7. The First Objector provided a copies of a draft planning permission dated 3^rd December 1992, and a planning permission dated 31^st March 1993. The 31^st March 1993 application was pursuant to an application received on 29^th September 1992, with subsequent amendments dated 5^th January 1993 from JS Bloor (Newbury) Limited. The First Objector also provided a copy of a further planning permission dated 2^nd July 1993, pursuant to an application received from Peter Hall and Co Limited dated 1^st June 1993.

5.8. The First Objector provided a copy of a Transfer of Part Imposing Fresh Restrictive Covenants dated 7^th January 1994 and made between J S Bloor Limited and Eastleigh Borough Council. The transfer was of the land shown and edged with red on plan 1 to the transfer, part of the boundaries of which were more particularly delineated and shown on plan 3 together with the rights in the First Schedule but subject to the rights in the Second Schedule. The land edged red included the application land. Clause 2 contained a covenant by the Transferee with the Transferor to observe and perform the covenants in the Third Schedule, expressed to be for the benefit and protection of the remainder of the land now or formerly comprised within the title out of which the land was transferred, HP247546. The Third Schedule provided:

"Not to use the Property for any purpose other than for public open space but so that such restriction shall not prevent:

(a) use for play areas or areas for formal games or the erection of one building for interpretation and information purposes on any part of the Property except the Yellow Land and the land coloured violet on Plan 1 [the application land, the land to the north of Solent Meadows and a triangle of Avery's Field, immediately to the south of the application land].

(b) the enhancement of the Property for the purposes of conservation"

5.9. The First Objector provided Official Copy Entries of Title of Title Number HP264747, showing that it is and has been since 8^th October 1984, the Registered Proprietor of the land at Hamble Common and Hamble Green.

5.10. The First Objector provided an Agreement for the Management of Public Open Space at Green Lane Hamble-le-Rice dated 22^nd October 2004 and made between Eastleigh Borough Council and Hamble-le-Rice Parish Council. The premises the subject of the agreement was the application land. The period of the contract was from 22^nd October 2004 to 22^nd October 2039. The Use was defined by Clause 1.4 as "the use of the Premises as open space land maintainable at the public expense for public use for recreational purposes or such other use as shall previously have been approved by the Borough Council in writing". By 2.1.2 the Parish Council agreed to manage the premises to provide the Use at all times. By Clause 4.1 the Parish Council agreed to use the Premises only for the Use and not to cause or permit the Premises to be used for any other purpose. By Clause 4.2 the Parish Council agreed:

"In the use and management of the Premises the Parish Council:

4.2.1. Shall not do or suffer to be done on the Premises anything which might be or become a nuisance or annoyance to the Borough Council or the owners or occupiers for the time being of any adjoining or neighbouring land or property

4.2.2 Shall not use or cause or permit to be used any playing field upon the Premises other than for public recreation or public leisure facilities and shall not erect thereon or cause or permit to be erected thereon any floodlights or stadium seating or (without prejudice to the foregoing) any other structure or building save as herein provided nor carry on any trade or business thereon (but not so as to exclude leisure uses on a commercial basis by a non-profit making body or organisation or by a local authority in pursuance of its function of providing recreational facilities

4.2.3 Shall observe and enforce all byelaws affecting the Premises whether existing at the date hereof or to be brought into force during the Contract Period and shall not promulgate any new byelaws affecting the Premises without prior consultation with the Borough Council

4.2.4 Shall at all times comply with the restrictive covenants affecting the Borough Council's title under HP477184 a copy of which covenants is set out in the Schedule hereto"

6. The Second Objector's witnesses

6.1. Again, the evidence on behalf of the Second Objector fell into two parts: the evidence of those who gave oral evidence, to which I must attach most weight, and the evidence of those who gave written evidence only, which bears less weight, but nevertheless must be taken into account. I heard oral evidence from three witnesses on behalf of the Second Objector: Mrs Dorman, Mrs Sedgwick and Mr Underwood. I have set out the evidence in detail in Appendix 3 and here summarise the most relevant points of the evidence of those witnesses who gave oral evidence and of those witnesses who gave written evidence only, but whose evidence was most pertinent.

6.2. Mrs Dorman (Satchell Lane) gave oral evidence . She did not use the application land until 1994, except when attending events. Mrs Dorman recounted an episode after 1994 when she had found the gate to the Heather Garden shut with a chain and padlock, and had complained to the Borough Council about it because she was aware #that the land had been handed over and opened to the public for access. It had been reopened a few days later.

6.3. Mr Underwood (Satchell Lane) gave oral evidence. He is the Chairman of the Parish Council. He corroborated Mrs Muffett's evidence in relation to the public meeting to consider Bloors' application for planning permission, and Mr Mould Ryan's evidence in relation to the permissive footpath. He had a clear recollection of the use of the application land over the relevant period.

6.4. Ms Smith rented the land during the early 1980s up until about 1985 to graze her horses. She erected fencing around the inside of the perimeter of the field (including part of what is now Solent Meadows).

6.5. Ms Edwards rented the land and used it to graze her horses between 1990 and 1993. She fixed the fences in about 1989 or 1990. She used electric fencing as well.

6.6. Mr Hatchett worked for Bloors. He confirmed that Ms Edwards had rented the land and that it had been a condition of her letting that she should fix the fences.

6.7. Mr Clarke has been employed by the Parish Council since 1997, firstly as Groundsman and latterly as Head Groundsman. He remembered the land being cut for hay in 1997. He described the maintenance regime for the land since 1997.

Documentary evidence submitted by the Second Objector

6.8. I have re-read all the documents submitted by the Second Objector, whether specifically mentioned or not, and here summarise the most relevant.

6.9. O2/82 was an extract from the Regatta and Carnival programme for 1976. The College of Air Training was thanked for lending their field for parking and for the Donkey Derby and for permitting parking charges to be made for the benefit of Regatta funds.

Permissive footpath from south east corner of village green to Common

6.10. O2/85 was a letter dated 31^st May 1988 from Graham Cornish of the Itchen Hamble Countryside Project to Mr Nicholson of Mere House, stating that the writer had reached agreement with Bloor Homes for the construction of a footpath over their land, following the route shown on the attached map, and that work was to start shortly. The map showed a route from the south east corner of the village green, heading in a southerly direction through the eastern edge of the area known as the Heather Garden, to Avery's Field, around the eastern edge of Avery's field and to the Common.

6.11. O2/86-91 was various correspondence between Ms Cullen (now Muffett), the Clerk to the Parish Council and Eastleigh Countryside Service concerning the footpaths in the Parish dating from 1996. It is clear from this correspondence that the path referred to above was in existence and use at that date, and was upgraded during 1996.

Photographs

6.12. O2/97-103 were a series of photographs. 02/97 was an undated photograph showing greenhouses and cold frames in the north western part of the original Donkey Derby Field, the part now occupied by the Solent Meadows development. It appears from this photograph that the buildings were in the northern part of the western side of the field, and this impression is confirmed by the distant view dated 24^th August 1980 at O2/98, in which the buildings appear to occupy the top half of the western side of the field. O2/99 is an aerial photograph of the field dated 1988. The western side of the field around the buildings appears overgrown, which would accord with Mr and Mrs Townsend's evidence that Air Training College had ceased using the garden facilities in the late 1970s and the evidence that the site had been purchased by Bloors in the 1980s. I was asked to note that although other paths across grassed areas are visible, no path is visible across the application land. O"/99A is a Microsoft Virtual Earth aerial photograph of the application land. The Copyright in the underlying image is stated to be 2008 Get Mapping plc. The houses in Solent Meadows are present, so it is clearly post 1994. It is likely that the photograph was taken in 2007 or 2008. There is a clear path worn in the grass on the application land from the kissing gate in the northern fence to the kissing gate in the south east corner of the land. O2/100 and 101 show signs: there is a sign on a pole by the side of the road in the entrance to the field which reads "Hamble-le-Rice Parish Council Please do not obstruct the entrance and gate". The Council Minute extracted at O2/121 shows that the Council resolved to erect this sign on 9^th Septmeber 2002. There is a sign on the gate itself which reads "Do not obstruct" and a sign on the fence to the right of the gate which reads "Donkey Derby Field". O2/102103 show the drop-down directional signs which are used when the field is used for parking. The Council Minute of the Meeting on 12^th June 2006 extracted at O2/115 records that these signs were erected in May 2006.

Extracts from Parish Council Minutes

6.13. O2/104-121 were various extracts from the minutes of the meetings of the Parish Council and its committees between February 1995 and 25^th June 2007. The minutes showed that permission was given for use of the Donkey Derby field on the following dates for the following events:

Meeting	Date of event	Event
13.02.1995 and 27.02.1995	March 1995	Warming pans - parking
26.02.1006	1996	Carnival - end of procession
22.07.1996	August 1996	Cowes weeek - parking
12.05.1997	1997	Warming Pans
23.06.1997	1997	Hamble Week - parking
23.03.1998	1998	Warming Pans - parking
27.07.1998	1998	Hamble Week - parking - not many cars needed the overflow facility, probably due to the wet weather
17.08.1998	12/13 Sept 1998	Laser 5000 open meeting - parking cars and trailers
28.06.1999	1999	Hamble Week - parking
27.03.2000	2000	Warming Pans - parking
26.03.2001	2001	Warming Pans - parking in top part of the field
14.05.2001	July and August 2001 (total 13 days)	Meter Regatta - parking 707 Nationals - parking Overflow car park for motor vehicles (trailers to be left elsewhere), only to be used after Royal Southern's car park is full Council noted usually asked to open DDF for HRSC Winter Series (8 days); HRSC Warming Pans (2 days); Hamble Week (2 days); Round the Island Race (1 day).
25.06.2001	2001 July 2001 March 2002 2002	Winter Series - parking (9 days) Albacore Southern Area Championship and Firefly Open Meeting - parking (2 days) Anniversary Warming Pans - parking (2 days) Winter Series 2002 - parking (9 days)
10.09.2001	August 2002	National Firefly Championships- parking
25.03.2002	May 2002	Yachting event - parking for up to 100 cars 20-22 May
22.07.2002 and 23.09.2002	September 2002	J-UK - Cork 1720 Sportsboat European Championship Regatta - storage of 35-40 trailers (4.5 days permitted, but gate had not been locked at the end of this period, and further use was made of the field over the following 3.5 days)
27.01.2003	June and July 2003	Hamble Week (28, 29 June and 4-6 July)
24.03.2003	May 2003	Flower Festival - parking (2 days)
09.06.2003	Nov 2003	Royal Southern Yacht Club Charity Bazaar - parking, when the foreshore car park is full, the Foreshore Warden to determine when DDF should be opened, and in the case of adverse weather to warn that the field may not be opened.
26.01.2004	June and July 2004	Hamble Week - parking (5 days)
26.01.2004	Oct, Nov, Dec 2004	Winter Series - parking (8 days)
09.02.2004 and 22.03.2004	March 2004 July 2004	Warming Pans - parking (2 days) - not actually used as Warming Pans cancelled Firefly Open Meeting - parking (2 days)
22.03.2004	Nov 2004	RSrnYC Charity Gift Bazaar (06.11.2004)
16.08.2004	21/22 Aug 2004	Parking for visitors to Naming day ceremony of parishioner's grandchild
14.02.2005		Hamble River Sailing Club events - parking
14.03.2005	2005	Hamble Week - parking 2, 3, 7, 8 & 9 July SIGMA team racing - parking 7-8 May X Yachts Gold Cup 6-9 July
23.05.2005	2005	Bank holidays from Easter to end of August, when the weather is good and the Foreshore car park full
13.06.2005	Sept 2005	Sea Britain Heritage Festival - 2 days
25.07.2005	Nov 2005	RsrnYC Charity Gift Bazaar - parking 1 day
26.09.2005	Dec 2005	Christmas Market - overflow parking - 1 day
26.09.2005	2005	Big Boat series - 1 day Autumn Championships - 1 additional day
12.12.2005	June 2006	RAF Yacht Club Boat Jumble - parking (4^th June)
16.01.2006	2006	Warming Pans (11-12 March) Winter Series (7-8, 14-15, 21-22, 29 October, 12, 19, 26 November and 3 December).
13.03.2005	June 2006	Laser SB3 Grand Prix - parking for cars and storage of trailers (30 June, 1 and 2 July)
15.05.2006	July 2006	Hamble Week (5 days)
12.03.2007 26.03.2007 14.05.2007	Jun-July 2007	Hamble Week - parking (30 June, 1, 6 and 7 July)

6.14. The Minutes also record that there was a concern raised in June 2002 by a parishioner that Donkey Derby Field had been opened for parking for a corporate event: the parishioner was concerned that the Royal Southern Yacht Club, which hosted the event, could have accommodated the cars, and the field need not have been used.

6.15. The Minutes record that there was a letter of complaint received in about September 2002 by the Parish Council from Mrs Eddison of Finials, Solent Meadows, regarding overuse of the Donkey Derby Field for parking.

7. The Individual Objectors

7.1. I heard oral evidence from each of the Individual Objectors. The Individual Objectors also relied on written evidence including a large number of letters and a number of questionnaires. Again, the oral evidence is that to which I must attach the most weight, but the written evidence must also be taken into account. I have set out the evidence in detail in Appendix 4, and here summarise the most relevant points.

7.2. Mr Nicholson (Mere House from 1969): Mr Nicholson's family had not used the application land before 1994, and although his children did play in the Heather Garden during the relevant period, he stated that they accessed that area over the fence between his property and the Heather Garden: the Heather Garden was not generally accessible until after the permissive path was constructed in 1988. He remembered Ms Edwards keeping horses on the application land. There was a fence between the application land and the Heather Garden, the remnants of which were still visible.

Documents relied upon by the individual objectors

7.3. Councillor Pepper supplied a copy of a report which he stated was a report of a planning audit visit which took place in 1995. It appears that the report must be an Eastleigh Borough Council document. The report sets out the planning history of the Solent Meadows site and the adjacent land.

7.4. The individual objectors included in their inquiry bundle extracts from various planning documents produced by Hampshire County Council and Eastleigh Borough Council concerning the River Hamble and recreational facilities in general. The River Hamble is recognised as a major centre for recreational boating, important both regionally and nationally. They submitted that the facility for parking for 28 days a year facilitates the use of the Hamble River, which is one of the major recreational facilities in Hampshire. If the application were to succeed, the effect would be to restrict the accessibility of the facilities.

7.5. The individual objectors provided an interesting and informative history of the Hamble River Sailing Club. The Club was the first sailing club on the river. It particularly promotes youth activities through its cadet programme. The Club recognises as a challenge that it is on rented land and has no available land for car parking or dinghy parks. The other two clubs on the river at Hamble are the Royal Southern Yacht Club and the RAF Yacht Club.

7.6. The individual objectors submitted a document headed "Detrimental effects it will have on the HRSC" setting out the likely effects of the loss of occasional parking on the application land and setting out the events currently run by the Club. The individual objectors also included the Parking Strategy for Hamble-le-Rice Village report by RTA Associates Limited, consultants and appended Eastleigh Borough Council's document entitled "Parking in Hamble-le-Rice" in their bundle as appendix 1, and, as appendix 2, an article from the Parish Council Magazine headed "Donkey Derby Field dispute divides the Village".

8. Evidence from members of the public

8.1. One member of the public, Mr Aspinall of Green Lane, attended the inquiry and indicated that he wished to speak. His evidence is set out in detail in Appendix 5 to this report. Mr Aspinall stated that he had walked across the application land maybe 10 times between 1989 and the date of the inquiry. He had believed that there was a public right of way across the field. There was a gate at the top and a stile of some sort at the bottom. He was not very familiar with the land and might not have known for fairly long periods if horses were there.

9. Submissions

9.1. At the conclusion of the inquiry I invited each of the parties who had appeared to make closing submissions. Those submissions are set out in detail in Appendix 6 to this report.

10. The Law

10.1. The Commons Registration Act 1965 provided for each registration authority to maintain a register of town or village greens within its registration area. There was a period expiring on 31^st July 1970 for the registration of greens. By section 1(2)(a) of the 1965 Act, no land which was capable of being registered as a green by the end of the original registration period "shall be deemed to be...a town or village green unless it is so registered". Section 13(b) of the 1965 Act provided for the amendment of that register where any land became a town or village green after the end of the original registration period.

10.2. Section 15 of the 2006 Act has been implemented on an interim basis⁵, until provision is made for implementation of the whole of Part 1 of the Act in any particular area: where an application is granted under section 15 before section 1 of the 2006 Act has come into force in relation to the area in which the land is situated, the Registration Authority must register the land in the register of town and village greens maintained for the area under the 1965 Act, and, until the coming into force of section 1 of the 2006 Act in relation to that area, the 1965 Act applies in relation to the registration as if it had been made pursuant to section 13(b) of that Act.

10.3. Section 15 allows any person to apply to the registration authority to register land to which Part 1 of the Act applies as a town or village green in a case where subsection (2), (3) or (4) of section 15 applies. In the case of this application, the applicant stated that subsection (2) applies.

10.4. Section 15 provides (as relevant):

"15 Registration of greens

(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.

(2) This subsection applies where-

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within 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.

...

(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(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.

(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied-

(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and

(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right"

...."

10.5. Many of the words and phrases used in section 15 of the Commons Act 2006 are identical to the words and phrases used in the Commons Registration Act 1965. The decided cases under the 1965 Act on what those words mean remain authoritative.

The Legal Issues

10.6. The main legal issues that have been decided by the courts are as follows:

What is a town or village green?

10.7. A town or village green is land which is subject to the right of local inhabitants to enjoy general recreational activities on it. Activities are not limited to those which have been historically enjoyed⁶.

What is the effect of registration?

10.8. The effect of registration can be summarised as follows:

· The fact that land is registered as a green is conclusive evidence that it was a green as at the date of registration⁷.

· The fact that land is not registered as a green is conclusive evidence that it is not a green

· The fact that land is a registered green (a) gives local people recreational rights over the green and (b) subjects the land to the protective provisions of section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876⁸.

Land to which this Part applies...

10.9. Land to which Part 1 of the Commons Act 2006 applies is defined by section 5 of that Act. Part 1 applies to all land in England and Wales, subject to certain exceptions which are not relevant in this case. "Land" is defined in section 61, the interpretation section⁹, as including land covered by water¹⁰. It is not necessary to demonstrate use of every square foot of the land for the whole of the 20 year period, but a Registration Authority would have to be persuaded that for all practical purposes it could sensibly be said that the whole of the site had been used in the required manner for the relevant period.¹¹

...a significant number...

10.10. "Significant" does not mean considerable or substantial. What matters is that the number of people using the land in question has to be sufficient to indicate that their use of the land signifies that it is in general use by the local community for informal recreation, rather than occasional use by individuals as trespassers¹².

...of the inhabitants of any locality or of any neighbourhood within a locality...

10.11. A "locality" cannot be created by drawing a line on a map¹³. A "locality" must be some division of the county known to the law, such as a borough, parish or manor¹⁴. An ecclesiastical parish can be a "locality"¹⁵ but it is doubtful whether an electoral ward can be a "locality"¹⁶. The users must be predominantly the inhabitants, although the land need not be used exclusively by the inhabitants.¹⁷

10.12. By contrast with a locality, a "neighbourhood" need not be an administrative unit known to law. A housing estate can be a neighbourhood¹⁸. A neighbourhood need not lie wholly within a single locality¹⁹.

...have indulged in lawful sports and pastimes...

10.13. The words "lawful sports and pastimes" form a composite expression which includes informal recreation such as walking, with or without dogs, and children's play. Those activities which would today be regarded as sports or pastimes are included, and in modern times, dog walking and playing with children tend to be the kind of informal recreation which may be the main function of a village green²⁰. Walking of such a character as would give rise to a presumption of dedication as a public right of way is not a lawful sport or pastime²¹. Where the character of the walking ambiguous then the ambiguity should be resolved in favour of the less onerous right (i.e. a right of way)²².

10.14. Use incidental to such walking, such as stopping to pass the time of day with another walker does not convert the walking into lawful sports and pastimes. Where a dog strays off a path or an owner strays off a path to retrieve a dog this does not turn use of a right of way into lawful sports and pastimes²³.

...as of right...

10.15. Use of land "as of right" means use without force, stealth or permission ("nec vi nec clam nec precario") and does not turn on the subjective beliefs of users²⁴. User "as of right" must be use as a trespasser and not use pursuant to a legal right²⁵. An application should not be refused merely because the witnesses do not depose to a belief that the right attaches to them as inhabitants of the village²⁶.

10.16. "Force" does not just mean physical force. User is by force in law if it involves climbing or breaking down fences or gates, if it involves ignoring notices prohibiting entry, or if it is under protest²⁷.

10.17. "Permission" can be express, e.g. by erecting notices which in terms grant temporary permission to local people to use the land. Permission can be implied, but permission cannot be implied from inaction or acts of encouragement by the landowner²⁸. Toleration is not inconsistent with user as of right.²⁹

Beresford

10.18. In the case of R v. City of Sunderland ex part Beresford³⁰, the House of Lords considered the meaning of the phrase "as of right". It was accepted that the words "as of right" imported the absence of any of the three characteristics of compulsion, secrecy or licence - nec vi, nec claim, nec precario³¹. The appeal turned on the question of whether the inhabitants' use of the land had been by virtue of the implied licence of the council. The parties were invited to make written submissions on the question of whether the inhabitants had indulged in lawful sports and pastimes for the qualifying period of 20 years not "as of right" but pursuant to a statutory right to do so.³² The undisputed evidence did not establish or give any grounds for inferring any statutory trust or any appropriation of the land as recreational open space³³. However, in my judgment, it can be inferred from the fact that the House of Lords invited submissions on the point, that, where it is established that the local inhabitants do enjoy a statutory right to use the land for lawful sports and pastimes, this will preclude a finding that their user has been use "as of right", so the statutory test for registration as a town or village green will not capable of being satisfied in relation to that land.

10.19. On the facts in Beresford, the House of Lords was not satisfied that any statutory right existed which conferred on the local inhabitants a legal right to use the land for indulgence in lawful sports and pastimes.³⁴ Counsel for the council disclaimed reliance on section 21 of the New Towns Act 1981 and the question of whether that section might confer a statutory right was not therefore open for determination by the House of Lords, although it appears that Lord Scott, at least, had the point been argued, might have been persuaded that that section did confer such a right.³⁵

Express acquisition or appropriation under the Open Spaces Act 1906

10.20. It was accepted by both parties that, had the council acquired the application land under the Open Spaces Act 1906, the local inhabitants' use of the land for recreation would have been use under the trust imposed by section 10 of the Act³⁶. The use would have been subject to regulation by the council and would not have been a use "as of right" for the purposes of class c of section 22(1) of the Commons Registration Act 1965.³⁷

10.21. Lord Walker addressed this matter at paragraph 87:

"Where land is vested in a local authority on a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers)."

Inferred acquisition or appropriation under the Open Spaces Act 1906

10.22. Counsel for the council accepted that the appellant applicant was correct in contending on the facts that the application land had not been acquired under the Open Spaces Act 1906, and that therefore section 10 did not apply. The question of whether the land had been acquired under the Open Spaces Act 1906 was therefore not open for decision by the House of Lords³⁸. However, it appears that, had it been, Lord Scott (at least) might have been persuaded that it was not necessary in order to prove that land had been acquired under the Act for reference to the Act itself to be expressly stated either in the deed of transfer or in some council minute relating to the acquisition. Lord Scott commented:

"Attorney-General v Poole Corporation [1938] Ch 23 is interesting on this point. The open space land in question had been conveyed to Poole Corporation:

`in fee simple to the intent that the same may for ever hereafter be preserved and used as a pleasure or recreation ground for the public use.'

"There was no express reference in the conveyance to the 1906 Act, but the Court of Appeal thought it plain that the Act applied. Indeed, counsel on both sides argued the case on the footing that that was so: see Sir Wilfrid Greene MR, at p30. It seems to me, therefore, that the 1906 Act should not have been set to one side in the present case simply on the ground that in the documents relating to the transfer to the council no express reference to the 1906 Act can be found. It would be, in my view, an arguable proposition that if the current use of land acquired by a local authority were use for the purposes of recreation, and if the land had not been purchased for some other inconsistent use and the local authority had had the intention that the land should continue to be used for the purposes of recreation, the provisions of section 10 would apply: cf counsel's argument in Poole Corporation, at p27."

Land held for the purposes of public recreation

10.23. There is some indication that Lord Walker's view was that, even if there is nothing from which acquisition or appropriation under section 10 of the Open Spaces Act 1906 specifically could be inferred, where land owned by a local authority has been acquired or appropriated for the purpose of recreation (for instance under section 19 of the Local Government (Miscellaneous Provisions) Act 1976), the use by the public will be use "by right" rather than use "as of right". Lord Walker continued in paragraphs 87 and 88:

88 Those situations would raise difficult issues, but, in my opinion, they do not have to be decided by your lordships on this appeal, and would be better left for another occasion."

Land held by a local authority and used as open space land

10.24. Lord Scott in paragraph 52 of his speech stated that although the point had not been argued before the House of Lords, he thought that there were strong arguments for contending that where "open space" land was within the ownership of a principal council, even if the Open Spaces Act 1906 was not applicable, the statutory scheme under the Local Government Act 1972 excluded the operation of section 22(1) of the Commons Registration Act 1965:

"For these reasons, I would, on the basis upon which the case has been argued before your lordships, allow the appeal. I am, however, for reasons that will have appeared, uneasy about this conclusion. Where open space land comes into the ownership of a "principal council", I think there are strong arguments for contending that the statutory scheme under the Local Government Act 1972, whether or not the Open Spaces Act 1906 or section 21(1) of the New Towns Act 1981 are applicable, excludes the operation of section 22(1) of the Commons Registration Act 1965. But these arguments have not been addressed to your lordships. I think also, as at present advised, that the power of disposal of open space land given to principal councils by section 123 of the 1972 Act will trump any town or village green status of the land whether or not it is registered. But this, too, if the council wish to take the point, must be decided on another occasion."

10.25. However, Lord Walker, on the other hand, thought that counsel for the registration authority had been correct not to argue for some general implied exclusion of local authorities from the scope of section 22 of the Commons Registration Act 1965³⁹.

10.26. None of the other Law Lords expressed a specific opinion on this point. Lord Bingham gave his own reasons, and stated that he agreed with Lords Scott, Rodger and Walker. Lord Hutton agreed with Lords Walker, Bingham and Rodger. Lord Rodger gave his own reasons and agreed with Lords Bingham and Walker. I consider therefore that I must give Lord Walker's opinion on this point more weight than Lord Scott's opinion.

Acquiescence as an essential element of user as of right

10.27. In Sunningwell⁴⁰ the essential element of acquiescence on the part of the landowner in considering whether use was as of right was emphasised in Lord Hoffman's speech at 351H:

"It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner. (For this requirement in the case of custom, see Mills v Colchester Corporation (1867) LR 2 CP 476, 486). The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right - in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period. So in Dalton v Angus (1881) 6 App.Cas. 740, 773, Fry J. (advising the House of Lords) was able to rationalise the law of prescription as follows:

"the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.""

The effect of use by the owner (or those authorised by the owner) on whether user by local inhabitants is as of right

10.28. In R (Laing Homes Ltd) v Buckinghamshire CC⁴¹ the local inhabitants had enjoyed substantial recreational use of the land for lawful sports and pastimes. A farmer, under a grazing licence granted by the landowner, had concurrently used the land for light grazing and an annual cutting of hay. Sullivan J quashed the registration authority's decision to register the land as a green. He commented⁴²:

"Gathering a hay crop, with the activities of mowing, bobbing, wind rowing, baling, stacking, loading and removal, will interrupt the use or enjoyment of a field "as a place for exercise and recreation". Not merely do people have to keep out of the way of the machinery when it is in use, they may not disturb the mown hay whilst it is drying, when it has been aligned in wind rows, and when it has been baled. Getting out of the way of machinery which is being operated so as to facilitate the use of land for lawful sports and pastimes (mowing/rolling a playing field) is wholly consistent with the assertion of a right to use the land as a village green. Getting out of the way of machinery which is being operated for an agricultural purpose, to facilitate the taking of a hay crop from the land which will inhibit its use for lawful sports and pastimes, whilst the grass is growing, whilst it is dried and aligned for baling after cutting, when it has been baled, and whilst the bales are collected is not consistent with the assertion of such a right."

10.29. Sullivan J held that the decision of the Registration Authority based on the reasoning in the Inspector's report that the use of the land by the owner for taking a hay crop was not incompatible with the establishment of village green rights should be quashed for two reasons: firstly, that although the use of land for growing a hay crop had not been incompatible with the existence of a customary right to indulge in sports and pastimes on the land prior to the enactment of section 12 of the Inclosure Act 1857⁴³, since the passing of that section it had not been possible to establish such conditional rights. The enactment of section 29 of the Commons Act 1876 made any effective agricultural use of a village green even more difficult. He therefore concluded that village green rights could not be established where land was being used for the growing and cutting, drying and baling of a hay crop: it would be surprising if Parliament had intended that a level of recreational use which was compatible with the use of the land for agricultural purposes (such as taking a hay crop) would suffice for the purposes of section 22(1) of the Commons Registration Act 1965, because on registration, some, if not all, of those agricultural activities would become unlawful. Secondly, Sullivan J held that the proper approach was not to examine the extent to which those using the land for recreational purposes were interrupted by the landowner's agricultural activities, but to as whether those using the fields for recreational purposes were interrupting the landowner's agricultural use of the land in such a manner or to such an extent that the landowner should have been aware that the recreational users believed that they were exercising a public right. The starting point in considering whether user of the land had been "as of right" was how would the matter have appeared to the landowner. It would not be reasonable to expect the landowner to resist the recreational use of his fields so long as such use did not interfere with its licensee's use of them, for taking an annual hay crop. From the landowner's point of view, so long as the local inhabitants' recreational activities did not interfere with the way in which he has chosen to use his land - provided they always make way for his car park, campers or caravans, or teams playing on the reserve field, there will be no suggestion to him that they are exercising or asserting a public right to use his land for lawful sports and pastimes.

10.30. In the Oxfordshire case⁴⁴ the House of Lords was asked to consider whether registration as a town or village green created any rights in the local inhabitants. Lord Hoffman was of the opinion that the rights created by registration were not limited to those activities proved during the qualifying period, and also that the owner still had the right to use it in any way which did not interfere with the recreational rights of the inhabitants. There must be give and take on both sides. Lord Hoffmann commented on Sullivan J's decision in Laing⁴⁵:

"No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so "as of right". But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not."

10.31. Lord Rodger (at 114) and Lord Walker (at 124 and 127) agreed with Lord Hoffmann. Baroness Hale (at 137) refused to make a ruling on the issue on the grounds that it was hypothetical. Lord Scott did not agree that registration gave rise to rights for the local inhabitants extending to sports and pastimes generally and not merely that use which had been the basis for registration.

10.32. In R (Lewis) v. Redcar and Cleveland Borough Council⁴⁶ Sullivan J again had to consider the issue of the effect of a landowner's own use of the land on whether use by local inhabitants had been as of right. The application land included a golf course. The Inspector had made a finding of fact that recreational use of the Report Land by local people had overwhelmingly deferred to golfing use. His conclusion had been that such deferral precluded user "as of right". If local recreational users overwhelmingly deferred to the golf club use, they did not have the appearance of asserting a right as against the landowner to use the land for recreation.

10.33. Sullivan J re-considered his own decision in Laing in the light of the decision of the House of Lords in Oxfordshire. He acknowledged that the first strand of his reasoning in Laing was disapproved in Oxfordshire, but said that all parties were agreed that the second limb of his reasoning was not disapproved, and indeed appeared to be confirmed by Lord Hoffman as the proper approach. The question was therefore whether those using the land for recreational purposes were interrupting the landowner's own use of the land for his own purposes in such a manner or to such an extent that the landowner should have been aware that they were exercising a public right.

10.34. Sullivan J held that, although in practice low-level activities by the landowner may not be inconsistent with the use of his land for sports and pastimes for the purposes of section 15 of the 2006 Act, on the basis of the Inspector's findings of fact, the activities of the golf club could not sensibly be described as "low-level activities". The extent of the deference by local users was confirmed by the lack of any evidence that, from the golf club's point of view, its use of the land was being interfered with or inhibited by local people using the land for recreation.

10.35. Counsel for the Claimant submitted that there were good practical reasons for the deference found by the Inspector which had nothing to do with the local inhabitants deferring to the landowner's property rights, and therefore there was no proper basis on which the defendant could have assumed that no rights were being asserted by the public. It would be stupid and dangerous to walk across the line of play when a ball was about to be struck and most people would naturally defer to those using the land for other recreational pursuits, including golf, as a matter of common courtesy.

10.36. Sullivan J accepted that, when deciding whether or not to defer to golfers, the local users would have been concerned to ensure their own safety and to behave in a courteous manner towards other users of the land, and would have been most unlikely to have been in the least concerned with any question of competing legal rights, but he held that the motives of the local users for showing "overwhelming deference" to the golf club's use of its land as a golf course were irrelevant, relying on Lord Hoffmann's opinion in the Sunningwell case [2000] 1 AC 235 at pages 352 F to 356 E),. The question was: how would the matter have appeared to the golf club? It would not be reasonable to expect the club to resist the recreational use of the land by local users if their use of the land did not in practice interfere with its use by the club as part of a popular and well-used golf course⁴⁷. What matters to the landowner is the fact of deference to his use of the land, not the reasons for it which might vary from individual to individual. Sullivan J accordingly dismissed the claimant's challenge to the Registration Authority's decision.

10.37. The Claimant appealed to the Court of Appeal⁴⁸. Dyson LJ giving the leading judgment, dismissing the appeal, said that there was no longer any doubt as to the principles that should be applied in determining whether local inhabitants had indulged in lawful sports and pastimes "as of right" within the meaning of section 15 of the 2006 Act: it must be shown that their user is such as to give the outward appearance to the reasonable landowner that the user is being asserted and claimed as of right. Where there are no competing uses by local inhabitants and the owner, the answer to the question whether the local inhabitants' use of land has been nec vi, nec clam, nec precario will usually determine whether they have been using it "as of right". Where there are competing uses, the position may be factually more complicated, but the question remains the same: has the user been sufficient to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land? The answer will depend on an analysis of the manner and extent of the user. There are no principles of "interruption" or "deference". "Interruption" and "deference" are aspects of the "amount or manner" of the use, and may be relevant to a determination of whether the user has been sufficient to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land. He said:

"[41] ...As Lord Hoffmann said in Sunningwell at p 357D, the user may be "so trivial and sporadic as not to carry the outward appearance of user as of right". Thus, user by the local inhabitants may be interrupted sufficiently often and/or for sufficiently long periods of time that it does not carry the outward appearance of user as of right. It is a question of fact and degree in every case. As Mr Laurence concedes, user of the kind required to found an entitlement to registration is in its nature intermittent. Thus, where the owner does not put the land to any competing use, a claim founded on activities such as walking, picnicking and kicking a football about does not fail just because those activities are not carried out all the time.

[42] That is to be contrasted with the situation where the land is not used by local inhabitants at certain times by reason of the activities of the owner on the land at those times. Where that occurs, local inhabitants will usually not be physically prevented from indulging in lawful sports or pastimes despite the owner's competing activities. Thus, in Laing Homes the local inhabitants could have walked in front of the farmer's machinery had they chosen to do so. In the present case, they could have walked across the golf course while the golfers were playing if they chose to do so. The reality in such cases is that they voluntarily desist from interfering with the owner's activities, not that they are physically prevented from doing so.

[43] As Mr Laurence puts it, it is not a misuse of ordinary language to say in such cases that the use of the local inhabitants is "interrupted" during such periods, in the sense that they are not using the land while the owner is doing so. Equally, it is not a misuse of language to say that if the users refrain from using the land while the owner is doing so, they are "deferring" to the owner. What matters is not what label one puts on it, but how it would have appeared to the reasonable owner of the land at the time, and in particular whether it would have appeared to the reasonable landowner that the local inhabitants were asserting a right to use the land for the sports or pastimes in which they were indulging.

[44] I agree with Mr Laurence that this analysis is consistent with what Lord Hoffmann said at 57 of the Oxfordshire case. It is true that this paragraph contains obiter dicta and none of the other members of the House of Lords commented on it. Nevertheless, Lord Hoffmann clearly chose his words carefully and neither Mr Laurence nor Mr George suggested that we should not apply them. (As I have said, Mr Laurence reserves his right to argue on a future occasion that what Lord Hoffmann said about the Victorian statutes was wrong, but that is another matter). It is worth repeating what he said:

"No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so 'as of right'. But . . . I do not agree that low level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not."

[45] In other words, there are cases where, in practice, the activities of the owner will be inconsistent with user by the local inhabitants of the land for sports and pastimes for the purposes of s 22 of the 1965 Act (and s 15 of the 2006 Act). The inconsistency will manifest itself where the recreational users adjust their behaviour to accommodate the competing activities of the owner (or his lessees or licensees). By adjusting their behaviour, they give the impression to the owner that they are not claiming a right to do what they are doing. That leads the owner not to regard the users as acting as of right."

10.38. Rix LJ, agreeing, added that the facts relating to competing activities may well be relevant to, and thus possibly antithetical to, the establishment of the inhabitants' use "as of right": the inhabitants' use must demonstrate to the owner that they assert a right to do what they do. Those questions were matters of fact, the findings in relation to which might undermine the assertion of right.

Conclusions on "as of right"

10.39. In my judgment it is clear from the above cases that in considering whether the use of the land by the local inhabitants has been "as of right", the Registration Authority must bear in mind that acquiescence is an essential element of use as of right. The Registration Authority must consider whether the use by the local inhabitants has been sufficient to bring home to the reasonable landowner that the local inhabitants have been asserting a right to use the land. Where the land owner has used the land himself (or the land has been used by those authorised by him), one of the aspects which will be relevant to that determination is whether the activities of the landowner were in practice inconsistent with the local inhabitants' use of the land for sports and pastimes. That question is a question of fact and degree.

10.40. Where a local authority holds land under section 10 of the Open Spaces Act, on trust for the free and unrestricted use of the public, it would be entirely wrong and unrealistic to characterise as "acquiescence" the fact that the Council did not seek to treat members of the public using the land as trespassers. The correct analysis must be that by withholding any claim in trespass, the Council was observing its duty to admit the public to the land for the purposes of recreation. That duty might be observed, in appropriate circumstances, by imposing restrictions on public access, either by means of byelaws or under the general law. Where the public use land for a purpose which it is the duty of the landowner to permit, the user is not as of right, rather any use of that land by any member of the public is use which he is entitled to make of the land i.e. use by right, rather than use as of right.

10.41. In my judgment therefore, if the land was acquired or appropriated to use under section 10 of the Open Spaces Act 1906, either by express reference to those powers, or by implication, the use by the public of the land for the period during which it was so held is not qualifying user "as of right" for town or village green purposes.

10.42. However, if there is no express acquisition or appropriation to use under the Open Spaces Act 1906, and no material from which acquisition or appropriation to use under those powers can be inferred, the mere fact that land held by a local authority is used as public open space is not sufficient to make use of that land by the public as of right, as illustrated by the facts of Beresford itself. This conclusion accords with the view expressed by Lord Walker in Beresford referred to above, and in which the majority of the House of Lords concurred.

10.43. In the instant case the Borough Council claims to have acquired the land under the power contained in section 9 of the Open Spaces Act 1906 and to maintain it under the power contained in section 10. It does not rely on any minute or resolution of the Council setting out the power under which the land was to be acquired or on any express provision in the Transfer stating that the land was being acquired under those powers: rather it relies on the terms of the Transfer and the surrounding circumstances, together with the evidence of Mr Warren, as providing material from which the Council contends it can be inferred that the land was acquired under its Open Spaces Act powers. Whether those inferences can be drawn in the instant case is a question of fact, and I deal further with this issue under the heading "Findings of Fact" below.

...for a period of at least 20 years and they continue to do so at the time of the application.

10.44. Where the application is made under the subsection (2) criteria, the relevant user must be shown to have lasted for a period of at least 20 years and to have continued down to the date of the application: thus the Applicant must show, at the least, that there was relevant user for the 20 years immediately before the application was made.

Procedure

10.45. Procedure on applications to register new greens made before 6^th April 2007 was governed by The Commons Registration (New Land) Regulations 1969. These regulations proved quite inadequate to resolve many disputed applications and registration authorities had to resort to procedures not contemplated by the Regulations to deal with such applications. Section 24 of the Commons Act 2006 contained a procedural regulation-making power. New interim regulations modelled on the 1969 Regulations (The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007)⁴⁹ have been made under this power, and contain the procedure to be applied in determining this application.

Who can apply?

10.46. Anyone can apply to register land as a new green, whether or not he is a local person or has used the land for recreation.

Application

10.47. Application is made by submitting to the registration authority a completed application form in new prescribed Form 44. The new form is much easier to use than its predecessor, Form 30, and is accompanied by detailed non-statutory guidance notes on the registration process.

Accompanying documents

10.48. Although the application form has to be verified by a statutory declaration by the applicant or his solicitor, there is no requirement that the application should be accompanied by any other evidence to substantiate the application. Instead, reg. 3 provides for the application to be accompanied by any relevant documents relating to the matter which the applicant may have in his possession or control or of which he has the right to production. In most cases, there are few, if any, of such documents, as the application turns simply on a claim that the application land has been used for recreation by local people for more than 20 years.

Evidence

10.49. The applicant is only required to produce evidence to support the application if the registration authority reasonably requires him to produce it under reg. 3(7)(d)(ii).

Preliminary consideration

10.50. After the application is submitted, the registration authority gives it preliminary consideration under reg. 4(4). The registration authority can reject the application at this stage, but not without giving the applicant an opportunity to put his application in order. This seems to be directed to cases:

· Where Form 44 has not been duly completed, or

· Where the application is bound to fail on its face, e.g. because it alleges less than 20 years use or where the supporting documents disprove the validity of the application

Publicity

10.51. If the application is not rejected on preliminary consideration, the registration authority proceeds under reg. 5 to publicise the application by sending by post a notice in form 45 to every person (other than the applicant) whom the registration authority has reason to believe (whether from information supplied by the applicant or otherwise) to be an owner, lessee, tenant or occupier of any part of the land affected by the application, or to be likely to wish to object to the application. An index map search of the application land should be carried out and the notice should be sent to all persons revealed by the register to have an interest. The application must also be publicised.

· by publishing the notice in the concerned area

· by displaying the notice

· by sending the notice and a copy of the application to every concerned authority; and

· by affixing the notice to some conspicuous object on any part of the land which is open, unenclosed and unoccupied, unless it appears to the registration authority that such a course would not be reasonably practicable.

10.52. The date specified in Form 45 for submission of objection statements must be such as to allow an interval of not less than six weeks from the latest of the following-

(a) the date on which the notice may reasonably be expected to be delivered in the ordinary course of post to the persons to whom it is sent under paragraph (1)(a); or

(b) the date on which the notice is published and displayed by the registration authority.

Objectors

10.53. Anyone can object to an application to register a new green, whether or not he or she has any interest in the application land.

Objection Statement

10.54. Any objector has to lodge a signed statement in objection. This should contain a statement of the facts relied upon in support of the objection. There is a time limit on service of objection statements. The time limit is stated in the publicity notices issued by the registration authority. However, the registration authority has a discretion to admit late objection statements.

Allowing the applicant to deal with any grounds for rejection

10.55. The registration authority must send the applicant a copy of every objection statement received in time and of every statement which it is permitted to consider and intends to consider. The registration authority must not reject the application without giving the applicant a reasonable opportunity of dealing with the matters contained in any objection statement and any other matter in relation to the application which appears to the authority to afford possible grounds for rejecting the application.

Determination of application

10.56. The most striking feature of the regulations is that they provide no procedure for an oral hearing to resolve disputed evidence. The Commons Commissioners have no jurisdiction to deal with disputed applications to register new greens: R (Whitmey) v Commons Commissioners.⁵⁰ The regulations seem to assume that the registration authority can determine disputed applications to register new greens on paper. A practice has grown up, repeatedly approved by the courts, most recently by the House of Lords in the Oxfordshire case, whereby the registration authority appoints an independent legally qualified inspector to conduct a non statutory public inquiry into the application and to report whether it should be accepted or not. There is no power to award costs.

Procedural issues

10.57. A number of important procedural issues have been decided by the courts:

· Burden and Standard of Proof. The onus of proof lies on the applicant for registration of a new green, it is no trivial matter for a landowner to have land registered as a green, and all the elements required to establish a new green must be "properly and strictly proved"⁵¹. However, in my view, this does not mean that the standard of proof is other than the usual flexible civil standard of proof on the balance of probabilities.

· Defects in the application form. The House of Lords has held in the Oxfordshire case that an application is not to be defeated by drafting defects in the application form, e.g. where the wrong date has been inserted in Part 4, provided that there is no procedural unfairness to the objectors. The issue for the registration authority is whether or not the application land has become a new green

· Part registration. The House of Lords also held in the Oxfordshire case that the registration authority can register part only of the application land if it is satisfied that part but not all of the application land has become a new green

· Withdrawal of application. Also in the Oxfordshire case, the Court of Appeal held that the applicant has no absolute right to withdraw his application unless the registration authority considers it reasonable to allow withdrawal. Despite the applicant's wish to withdraw, the registration authority may consider that it is in the public interest to determine the status of the land. The House of Lords did not dissent from this view

Disposal

10.58. The registration authority must give written notice of the fact that it has disposed of an application to

· every concerned authority,

· the applicant, and

· every person whose address is known to the registration authority and who objected to the application either within time, or whose statement was considered although out of time.

10.59. The notice must include, where the registration authority has granted the application, details of the registration, and, where it has rejected the application, the reasons for the rejection.

10.60. Where the registration authority has rejected an application, it must return the application form and all accompanying documents to the applicant.

10.61. There is no power to award costs.

11. Findings of fact

11.1. Having re-read and carefully considered all the evidence submitted to the Public Inquiry (whether specifically mentioned in this Report or not) I reach the following conclusions in relation to the evidence.

General comments in relation to the evidence

11.2. This application has generated strong feelings in the inhabitants of Hamble-le-Rice. Some, in my judgment principally those who live closest to the application land and look out onto it, are concerned to preserve it in its present attractive state, and fear that pressure for parking spaces, and perhaps ultimately homes, might lead to it being developed. Some of those people have also been disturbed by those using the temporary parking facility currently provided on the land, and are opposed to that use continuing. Some do not wish the parking facility to be withdrawn. Many of those who have given evidence on behalf of the applicant have in my judgment been motivated in part at least by such considerations.

11.3. Others within the village, in particular but not exclusively those connected with the Sailing Clubs and the marine industry, are concerned at the possible ramifications of a decision by the Registration Authority to register the land as a green. They wish to ensure that the land can continue to be used for temporary parking and are concerned that registration might prevent this. Many of those who have given evidence in support of the objectors have in my judgment been motivated in part at least by these considerations.

11.4. The question of to what use the application land should be put in the future is entirely irrelevant to the question of whether it should be registered as a green: the test for registration is a backward looking test. Similarly the possible implications of registration are entirely irrelevant to the question of whether the land ought to be registered: the Registration Authority simply has to consider whether each and every element of the statutory test for registration has been met. However, given the strength of feeling which the application has generated, I have had to consider carefully in relation to each witness the extent to which his or her evidence might have been coloured by his views on the future use of the land.

11.5. The evidence of those witnesses who attended the inquiry to give oral evidence has been tested by cross-examination, and is more likely to be reliable than the evidence of those who provided written evidence only.

11.6. Many of the witnesses for the Applicant gave evidence in the form of a response to a standard form questionnaire. The Second Objector produced a document headed "Questionnaire Instructions"⁵² which it seemed Mr Underdown (the Chairman of the Parish Council) had been given by one or more people who was asked to fill in the questionnaire. Neither Mr Underdown nor Mr Oulton was asked about the Questionnaire Instructions, and I do not know whether they accompanied every questionnaire or just some of the questionnaires. Mr Underdown in his evidence drew my attention to some aspects of the questionnaire instructions which he thought might result in misleading answers being given by questionnaire respondents, and to the statement at the bottom of the instructions "This is all in a good cause - preserving green open space for public enjoyment in a conservation area." In my experience evidence collected in the form of evidence questionnaires tends to be less reliable than individually drafted statements. In particular here, there was no question which would have enabled me to distinguish between those witnesses who had only used the application land before 1994 for community events with permission, and those who claimed to have used it as of right at other times before 1994. There was no question relating to frequency of use in the past: the only question in relation to frequency of use was question 16, which was phrased in the present tense. Similarly the question "Why do you use the claimed green?" (question 14) was in the present tense, and was unlikely to have elicited a response which set out the use in the past. As is common in such questionnaires, the question in relation to witnessed use by others, made no attempt to define the frequency with which the activities specified had been seen or what period was at issue, so a single instance of a particular activity, outside the relevant period, would have resulted in a positive answer.

11.7. A particular problem, in my judgment, with the written evidence for the Applicant in this case, is that those who provided written evidence only often did not distinguish between occasions on which they had used the land with permission, by attending an organised event which was taking place on the land with permission, and occasions on which they were on the land without permission. Reading many of the questionnaires as a whole, it seemed to me likely that use reported in the early part of the relevant period was during organised events.

The application land

11.8. The application land lies to the south of Green Lane and to the east of School Lane in Hamble-le-Rice, a very attractive large village on the Solent river in Hampshire. It is within Hamble Conservation Area.

11.9. The application land is irregular in shape (approximately rectangular, but with the north-eastern corner removed), and is of approximately 150 metres at its maximum length (measuring approximately north to south) and approximately 70 metres at its maximum width (measuring approximately east-west).

11.10. The current registered proprietor of the application land is Eastleigh Borough Council. The Council acquired its title to the land, together with other land to the east, known as the heather garden, land to the south, known as Avery's Field, and a small triangle of land to the northwest of the land, to the north of the houses in Solent Meadows, by a Transfer dated 7^th January 1994, pursuant to a section 106 Agreement made in connection with the grant of planning permission for the development of the houses in Solent Meadows.Vehicular access to the site is gained by a five bar gate off a hammer head-shaped access road off Green Lane. The gate was locked at the time of my site visits. There is post and rail fencing along the northern boundary of the application land either side of the gate. There is a gap between the end of the fencing and the fencing along the side wall of the garages to Manor Cottage, West Cottage and Jasmine Cottage. There is a pedestrian kissing gate in the fencing to the west of the vehicular gate which was not locked.

11.11. To the north-east of the application land lie three houses: Manor Cottage, West Cottage and Jasmine Cottage. The garden of West Cottage abuts the application land, and a gate in the rear fence gives access to the application land. To the east of those houses, fronting onto Green Lane, lies an area known as Hamble Green which is registered in the Commons Register under Unit Number VG164 as a town or village green. To the east of the application land and to the south of the registered village green is an area referred to as the old heather garden. At the time of my site visit this area was woodland, in parts densely overgrown, and in parts relatively open. There is a path (originally a permissive path) from the eastern end of the registered village green through the old heather garden in a southerly direction to the common beyond⁵³ which was created in about 1988. Substantial iron fencing of about 5 feet in height with spiked tops, straddling a ditch and brick wall, runs along the boundary between the registered village green and the old heather garden. A gap has been created to accommodate the path. The wall has collapsed into the ditch in places, further towards the western end of the boundary, taking the fencing with it. At the western end of the boundary between the registered village green and the old heather garden there is a wrought iron gate bearing the date 1859 on substantial 7 foot brick built gateposts. The gate appears to have had an integral lock, which had rusted away by the time of my visit. There was a chain attached to the westernmost gate post which could have been used to secure the gate with a padlock.

11.12. To the north-west of the application land, immediately to the north of 1 Solent Meadows, is an area of overgrown open land. Some remnants of fencing runs between this area and the highway verges to Green Lane, along the same line as the fencing at the northernmost boundary of the application land, near the garages to Manor Cottage, West Cottage and Jasmine Cottage. There is a gap in the fencing in approximately the position of a pedestrian gate shown on survey plans produced by Mr Hall, one of the applicant's witnesses⁵⁴. This gap gives access onto the area of overgrown open land to the north-west of the application land.

11.13. To the immediate west of the application land, between the application land and School Lane, lies a recent (mid 1990s) development known as 1-5 Solent Meadows. A hedge separates the application site from the roadway known as Solent Meadows. The houses front onto the western side of the road (so that Solent Meadows road lies between the application land and the houses).

11.14. In its south-western corner the application land abuts the north eastern corner of a property known as Penmere House (formerly two houses known as River Cottage and Solent View). Along the remainder of the southern boundary the application land adjoins an area of open space known as Avery's Field. To the south of Avery's Field lies Hamble Common, registered in the Commons Register as Common under Unit Number CL36. Two ditches separate the application land and Avery's Field, with a bank in between. There is a hedge along much of the bank. There is a wooden fence inside Avery's Field. There are remnants of a dilapidated wire and wooden post fencing (2 wire strands, and a third strand of barbed wire) all the way along the southern boundary inside the application land running along the innermost ditch (at times disappearing into very thick undergrowth). At the south-western corner of the application land the fencing runs to a straining post at the corner of Penmere House. There is pedestrian access between the application land and Avery's Field via a bridge formed of sleepers over the first ditch, 3 steps, a second bridge formed of sleepers over the second ditch and a kissing gate. There is vehicular access between the application land and Avery's Field via a pair of five-bar gates, joined by fencing. The gate nearest the application land was locked with a padlock at the time of my visits. A pair of now redundant older metal gateposts suggests that there was an earlier gate in the same position. The dilapidated fencing is attached to these posts.

11.15. On the eastern boundary of the application land between the application land and the old heather garden there are long complete stretches of wire and wooden post fencing, although the fencing has been trampled down in places. Again, the fencing is single strand barbed wire and two plain wire on wooden 4 feet posts. The fence is entirely absent at the northern end of the eastern boundary, but there is one remaining post towards the rear of Jasmine Cottage which is consistent with the fencing having extended along the whole of the boundary.

11.16. To the east of the application land, fronting Green Lane, is Hamble Green, a piece of land of about 2.1 acres, registered as a green under Register Unit VG164. The area registered is the area as marked with a green verge line inside the boundary on Sheet 165 of the register map and distinguished by the number of the register unit, subject to the following modification: the metalled highway and highway verge to a width overall of 21 feet is excluded from the area registered. To the south and south-east of the application land, beyond Avery's Field, is an area of about 56 acres known as Hamble Common and registered as common under Register Unit CL36. The Council is also the registered proprietor of these areas.

History and use of the land

11.17. The application land historically formed part of the substantial areas in the village owned by Air Service Training and later the College of Air Training. The land adjacent to School Lane was used by the gardeners of the College. There was a pedestrian gate in the north west corner which gave access to the area the gardeners used. There was a vehicular gate giving access from Green Lane.

11.18. The application land was used from time to time by permission of the landowners for community events, principally the Carnival & Regatta. It was used in 1973 and 1975 for a Donkey Derby. This seems to be origin of the application land being called "Donkey Derby Field".

11.19. The application land together with Avery's Field and part of the land on which Solent Meadows is now built was let for grazing to Mrs Smith from about 1981 until about 1985. Mrs Smith was required to erect a fence as a condition of the agreement and did so. She erected a wooden post and barbed wire fence enclosing the application land together with part of the land on which the Solent Meadows development was later built. On the balance of probabilities this is the fence which was shown on the survey plan at A/1/117. Mrs Smith later created a Hampshire gate in the southern part of this fence to enable her to transfer her horses between Donkey Derby Field and Avery's Field.

11.20. Some time in the mid 1980s JS Bloor Limited acquired the application land.

11.21. In 1988 the permissive path from the south eastern corner of the registered green, through the eastern side of the heather garden, via Avery's Field to the Common was opened. Before the permissive footpath was built, the railings which separated the heather garden from the registered green were intact. A section of railings was removed to accommodate the new footpath. I accept Mrs Dorman and Mrs Muffett's evidence that the gate to the heather garden was habitually closed during the time that the land was occupied by the College of Air Training and into the beginning of the relevant period until the land was transferred to Eastleigh Borough Council. I accept Mr Nicholson's evidence that it was once the footpath was opened that people began to go into the Heather Garden.

11.22. I accept the evidence of Mr Hatchett that walkers were cutting through the application land between at least 1988 (from some time after Mrs Smith ceased to rent the field) until 1990 to access the land beyond. This is consistent with Mr Marsden's recollection. It seems likely to me that the Itchen Hamble Countryside Project agreed to erect a signpost pointing to the new permissive path in the gap which used to be the gate in the north west corner of the field (to the north of Solent Meadows) to discourage walkers from using this route, and to encourage them to use the new permissive route instead. I am entirely satisfied that this sign pointed in the direction intended.

11.23. From about 1990 the application land was let to Ms Edwards for grazing. Ms Edwards repaired the fencing erected by Mrs Smith in about 1990. That fence was still present when Mr Hall visited the land around December 1992 and parts of it can be seen in his photographs. Ms Edwards had ceased using the land by the time Mr Hall visited it. Sections of the post and wire fence on the boundary between the application land and the heather garden remained intact when I visited the site. It seems likely to me that, following the repairs, the fencing was, for some period at least, intact and would have prevented access to the application land other than by climbing or breaking down the fence, except where there were gates or step-overs in the fencing. Within the fenced area, Ms Edwards' horses were contained inside electric fencing. It was not clear whether the electric fencing extended around the whole of the application land or whether it extended around part only and was moved from time to time, but it is clear in my judgment, that those parts of the field where the horses were contained within the electric fence would have been inaccessible for lawful sports and pastimes.

11.24. After Ms Edwards' horses were removed from the land at least one tethered horse was kept on the land without permission for some time. There was a tethered horse present on the land when Mr Hall first visited the land in December 1992, visible in the photographs taken by him on that day. A tethered horse (perhaps the same one) is visible in the aerial photograph provided by Mrs Devine of the land. The tethered horse was removed before work began on the Solent Meadows development. In my judgment it is likely that the aerial photograph was taken in the spring or early summer of 1993.

11.25. An application for planning permission for "proposed open space and the erection of 5 No dwellings" was made by JS Bloor (Newbury) Limited under Application Number C/24511/2 on 29^th September 1992. The supporting statement stated that Area B would be conveyed free of charge to Hamble Parish Council for use as public open space. Restrictions within the conveyance would prevent the use of the land for any other purpose apart from public open space.

11.26. There was a public meeting in 1992 or 1993 to consider this planning application, at which the proposal that the application land should become public open space in return for the grant of planning permission for Solent Meadows was debated. In my judgment the proposal that the application land would become public open space would have been publicly knowledge amongst those who lived in the village at the time.

11.27. Amendments to the application for planning permission were made on 5^th January 1993.

11.28. On 31^st March 1993 JS Bloor Limited entered into a section 106 Agreement with Eastleigh Borough Council, under which it agreed to transfer the land to the Council. This was a requirement of the Council as planning authority in connection with grant of planning permission for the Solent Meadows development. The application land, the land to the north of Solent Meadows, originally forming part of the Donkey Derby Field, and the heather garden and Avery's Field were together defined as "the Open Space Land". By clause 3(1) J S Bloor Limited covenanted not later than 28 days from the date of grant of planning permission for the development of Solent Meadows to transfer the Open Space Land to the Council subject to the conditions and together with the rights set out in the Schedule. Paragraph 4 of the Schedule provided:

(b) the enhancement of the Open Space Land for the purposes of conservation".

11.29. Planning permission was granted pursuant to the 29^th September 1992 application as amended on 5^th January 1993 on 31^st March 1993.

11.30. Peter Hall and Company Limited acquired the land on which the Solent Meadows development was to be built on 31^st March 1993.

11.31. A further application for planning permission for construction of five dwellings with access to Green Lane was made by Peter Hall and Co Limited on 6^th April 1993 and amended on 1^st June 1993. Planning permission pursuant to this application was granted on 2^nd July 1993.

11.32. In July 1993 the application land was used for the Hamble Regatta & Carnival. The photograph at A/4/9A is consistent with the layout shown in the programme at A/1/104. The southern end of the field was occupied by a roped-off arena, with space for spectators around it. The northern part of the field was used for car parking. An earth bank can be seen on the left hand side of the photograph, created by the development of Solent Meadows, which suggests, as Mr Hall stated, that ground works for the site had begun by this date. It seems likely that the ground works for the Solent Meadows development started, as Mr Hall stated, in about June 1993.

11.33. On 7^th January 1994, the application land, together with other land, was transferred to Eastleigh Borough Council by JS Bloor Limited, pursuant to the obligation contained in the section 106 agreement. The transfer was of the land shown and edged with red on plan 1 to the transfer, part of the boundaries of which were more particularly delineated and shown on plan 3 together with the rights in the First Schedule but subject to the rights in the Second Schedule. The land edged red included the application land. Clause 2 contained a covenant by the Transferee with the Transferor to observe and perform the covenants in the Third Schedule, expressed to be for the benefit and protection of the remainder of the land now or formerly comprised within the title out of which the land was transferred, HP247546. The Third Schedule provided:

"Not to use the Property for any purpose other than for public open space but so that such restriction shall not prevent:

(b) the enhancement of the Property for the purposes of conservation"

11.34. At about the time of the Transfer of the application land to the Borough Council, new fencing and gates were installed on the northern boundary, including a kissing gate. At the southern end of the field a pedestrian bridge across the ditches and another kissing gate were installed, providing a route through the field to Avery's Field and the Common beyond. The kissing gates have been permanently open since they were installed, giving access to the land.

11.35. The sales of the 5 houses in Solent Meadows were completed between February 1994 and August 1995.

11.36. I prefer the evidence of the witnesses for the objector that prior to the transfer of the application land to the Borough Council, the land was generally known in the village to be private, and only available for public use at organised events. In my judgment, although on occasion adventurous individuals might have crossed the land to gain access to Avery's Field and the common beyond, and children may have trespassed on the area on occasion, the application land was not generally in use by local inhabitants for lawful sports and pastimes until 1994. In addition, in about 1990 the fencing was repaired, and it seems likely that those repairs would have remained effective for a period from 1990. I do not know whether the gate was locked during this period or not, and it is possible that access was possible without using force. However, the evidence of the applicant's witnesses was that they obtained access either from the Heather Garden or from the gap in the hedge on the corner of Green Lane and School Lane via the triangle to the north of Solent Meadows and the land now occupied by Solent Meadows. Any access from these points must have involved climbing fences and therefore should be regarded as having been obtained by force.

11.37. So far as the evidence of the community events prior to 1994 is concerned, I am satisfied that each and every one of these events took place on the land by permission of the landowner. Any local resident attending these events therefore did so by permission of the landowner, and was not on the land "as of right". Thus, although I am satisfied that the events were well-attended by local residents, I do not take that use into account when considering whether the land has been used by local inhabitants as of right, as the statutory test requires.

11.38. In the early years of Eastleigh Borough Council's ownership of the land, the land was very different in appearance to the way it was at the time of the inquiry. Between 1993 and 1997 the land was cut for hay. During the growing season the grass grew very high. There were tracks through the long grass and a worn area where access was obtained from Green Lane. The land was last cut for hay in 1997. Until 2000 the Parish Council did not own a suitable tool for rough cutting the application land when the grass was too long, and on occasion asked the Borough Council to cut it before a specific event.

11.39. Since 2000 the Parish Council has cut the grass about once a month in the summer and occasionally later in the year as required. The application land has been attractive to use, and the evidence of the applicant's witness that it is well-used by local inhabitants for informal sports and pastimes appears likely.

11.40. As a matter of impression, in my judgment the land is used predominantly by local residents, other than on parking days.

11.41. The land has also continued to be used from time to time by permission of the Parish Council (as manager of the land on behalf of the landowner, Eastleigh Borough Council) for community events, such as the 1996 Regatta & Carnival and the 1997 events in connection with Hamble Week. These events were open to the public, although common sense suggests that non-participants would have been excluded from the specific areas where certain events, such as the tug-o-war, were taking place, for safety reasons. Again, individuals attending the events were on these occasions on the land by permission of the landowner.

Under what statutory power did Eastleigh Borough Council acquire the land?

11.42. In my judgment it can clearly be inferred from the Transfer document itself and from the circumstances surrounding the transaction, including the application for planning permission and supporting statement, the provisions of the section 106 agreement and the terms of the Transfer including the covenant not to use the property for any purpose other than for public open space, that the power under which the Council acquired the land was that contained in section 9 of the Open Spaces Act 1906.

11.43. In reaching this conclusion I have considered Mr Webster's argument that the management agreement between Eastleigh Borough Council and the Parish Council is unhelpful to the Borough Council's case in that the definition of "the Use" by Clause 1.4 of the agreement as "the use of the Premises as open space land maintainable at the public expense for public use for recreational purposes or such other use as shall previously have been approved by the Borough Council in writing" [my emphasis] was hardly consistent with the land being acquired as a permanent open space under the Open Spaces Act. I do not accept that argument: the fact that land is acquired under Open Spaces Act powers does not mean that it will necessarily remain public open space in perpetuity: an acquisition under those powers is not a decision to retain and use land for those purposes for ever; it is only a decision to acquire and use the land for those purposes unless and until the land is disposed of or appropriated to a different purpose. There is no inherent inconsistency in the agreement contemplating a use for different purposes in the future of land which at the date of the agreement was held under Open Spaces Act powers.

11.44. Further I have considered Mr Webster's submission that this might have been an ordinary acquisition of land under section 120 of the Local Government Act 1972. Although the Council had the power to acquire the application land under this power, on the balance of probabilities, and bearing in mind Mr Warren's evidence as to the Council's practice, I consider it unlikely that the general power rather than the specific open space power was used.

The effect of the owner's own use of the land on whether the use has been as of right

11.45. Community activities have been held on the application land by permission of the landowner throughout the relevant period. Some of these events, for instance the 1993 Carnival & Regatta event and the 1997 Hamble Week event, of which Mr Yates produced a photograph, have taken up substantially the whole of the field, and although it has remained possible to walk through the field, use of the field for other recreational activities has been substantially impossible. There was no evidence of any of the local residents protesting about such use, and claiming to be entitled to use the field for lawful sports and pastimes in priority to the organised use to which the field was being put that day.

11.46. The application land has been used for car parking on up to 28 days per year, by permission of the Parish Council, who manage the land on behalf of the Borough Council. The vehicular gate, which is normally kept locked, is unlocked for these occasions. The total number of cars using the field on each occasion varies, although the Parish Council tries only to give permission for bookings which will ensure that on the occasions when parking is allowed, the field is well used, so that the available days are not squandered. The number of cars across the day also varies, according to the event for which parking has been permitted. On those occasions cars are not directed to park in one area only of the field: the whole of the area is available for car parking. Although individuals on behalf of the Parish Council monitor the car parking, there is rarely, if ever, a marshal on duty. On occasion the larger part of the field is filled with parked cars. Whilst those who arrived in cars on occasion enjoyed recreational activities in the field near their cars, such as picnicking and children's play, there was little evidence of use by local residents on these occasions. There was no evidence of local residents challenging the drivers' right to park their cars where they liked, or asking drivers to move their cars to accommodate some activity that local residents wished to enjoy on the field.

11.47. Although there was evidence that local residents had protested about car parking, those protests were mostly recent (post 2006), and were on the basis of the nuisance caused by the parking, or were in reaction to the suggestion that the field might be used on a more permanent basis for parking, rather than on the basis that the local inhabitants had a right to use the field for recreation which right was being interfered with by the use of the field for parking. Mr Oulton also protested that the permitted number of days was being exceeded. Some of the applicant's witnesses said that they modified their activities when the cars were in the field, for instance Mr Hugo Rogers said that on the days when there is parking he walks his dogs elsewhere.

11.48. I accept Mr Robb's submission that as a matter of common sense it is likely that residents moved their activities to the other open spaces available nearby on the days on which the application land was used for parking.

11.49. As I have found that the Council held the land under its Open Spaces Act powers it is not necessary for me to resolve this issue, as the use by the local inhabitants would not in any event have been asserting a right (or had the appearance of asserting a right), but would have been exercising a right. However, had I not found that the Council held the land under the Open Spaces Act 1906, I would have considered that the residents' behaviour on the days the application land was in use for an organised event or for parking would have been such that it would not have been apparent to a reasonable landowner that they were asserting a right to use the land for lawful sports and pastimes. This was not just a case of half a dozen cars occupying a very small area. The parking on occasions was extensive and occupied a large proportion of the field. Looked at sensibly, on those occasions, the whole of the field was in use for parking, even though small areas around the perimeter and the southern end of the field might not actually have been occupied by parked cars. The inhabitants adjusted their behaviour to accommodate the landowner's own use of the land by choosing to walk or play elsewhere, and by avoiding the parked cars, rather than challenging their entitlement to be there. Accordingly the local inhabitants would not have given the impression to the landowner that they were not claiming a right.

12. Applying the Law to the Facts

12.1. The Applicant's case is that every part of the application land should be registered as village green. If I am of the opinion that the application must fail in relation to the whole of the land, following the decision of the House of Lords in the Oxfordshire case, I must consider whether part only of the application land should be registered.

Land to which this Part applies...

12.2. I am satisfied the application land has been clearly defined and that it is land to which Part 1 of the Commons Act 2006 applies.

...a significant number...

12.3. In my judgment the evidence did not establish on the balance of probabilities that the level of use of the land for recreational purposes during the early part of the relevant period, from 1987 to 1993, was sufficient to signify to the landowner that his land was in use by the local population generally, rather than by individuals as trespassers.

12.4. I am satisfied that it was generally known in Hamble-le-Rice that the land came into public ownership and was available for use by the public in 1993. I am satisfied that since 1993 the land has been used by a significant number of local inhabitants, although in my judgment the use for sports and pastimes, as distinct from a right of way type use, has increased substantially in recent years since the land has been more regularly mown.

...of the inhabitants of any locality or of any neighbourhood within a locality......

12.5. The Civil Parish of Hamble-le-Rice is a qualifying locality. In my judgment the users of the land have come predominantly from the claimed locality.

...have indulged in lawful sports and pastimes on the land...

12.6. I have discounted evidence of walking across the land to gain access to Avery's Field and the common beyond (or the reverse), as this seems to me to be a right of way-type use, rather than use for sports and pastimes. Many people using the land used it to walk across and in my judgment this has been the predominant use of the land throughout the period.

12.7. Before 1993, in my judgment, the use of the land for lawful sports and pastimes was sporadic and insubstantial and was not of a sufficient level to give a reasonable owner the impression that his land was generally in use by local inhabitants for lawful sports and pastimes, rather than occasionally in use by individuals as trespassers.

12.8. After 1993, once right of way type use has been discounted, there remains a substantial amount of evidence that local inhabitants have used the application land for lawful sports and pastimes.

...as of right...

12.9. Before 1993, the land was used regularly for community events, including the Donkey Derby, from which its name is derived. The organisations which put on these events, without exception, obtained permission from the landowners to use the land. Local inhabitants who attended the events were therefore on the land not "as of right" but by permission of the landowner.

12.10. For a period at the beginning of the relevant period, from about 1990, the land was enclosed by fencing and grazed for horses. In my judgment it is likely that such use of the land for recreation as there was at this time and of which evidence was given by the applicant's witnesses involved climbing or breaking through fences, and was therefore by force. Further, whilst the land was being grazed, the horses were enclosed by electric fencing, and either the whole of the application land, or at the least the part enclosed by the electric fencing would not have been accessible to the recreational users.

12.11. From 31^st March 1993 to date, in my judgment, the land had been held by Eastleigh Borough Council under its Open Spaces Act 1906 powers. Any use by the local inhabitants since 31^st March 1993 has not been "as of right", as required by section 15 of the Commons Act 2006, but has been pursuant to the public's statutory right to use the land.

...for a period of at least 20 years and they continue to do so at the time of the application.

12.12. The relevant 20 year period here is the 20 years down to the date of the application: 26^th October 1987 to 25^th October 2007.

13. Conclusion and Recommendation

13.1. I conclude that the application fails. I recommend that the Registration Authority should reject the application and that the reasons for its decision to do so should be stated to be "the reasons set out in the Inspector's Report dated 27 July 2009".

LANA WOOD

9 Stone Buildings

Lincoln's Inn

27 July 2009

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