PURPOSE

1. The Isle of Wight Council, as registration authority, has received an application to register land known as The Green, including the Old Observatory, Stenbury View, Wroxall, as a Town or Village Green.

2. The application was advertised and the consultation procedure required by the 1965 Act has now been completed. The committee is requested to determine the application based upon the evidence which has been received.

DETAILS OF THE APPLICATION

3. The application was received from Miss Valerie Starbuck of 34 Stenbury View, Wroxall on 20 December 2005 and is attached as Appendix C. The application was supported by questionnaires from 19 individuals including the applicant. The application was verified and accepted on the 04 April 2006. The relevant period for the purpose of determining the application and from which the Committee is to consider evidence, is the 20 year period up until 15 April 2005.

LOCATION AND SITE CHARACTERISTICS

4. The land which is the subject of the application is shown edged in a thick black line on the plan attached as Appendix B. The total area is approximately 0.09 hectares. The land is made up of two areas; one contained within the other, bound by roadways on all sides and has 6 trees within a group protected by a Tree Preservation Order. The area as a whole is known as The Green, within the site is an area upon which used to stand a building which was an observatory, this area is know as The Old Observatory site.

RELEVANT HISTORY

5. Factual

At the time of the application ownership of the land was registered in two parts, one part to A W Goodhew & Sons Ltd of 1285 London Road, Leigh-on-Sea, Essex, and one part to Mr D Garber of 4 Ingram Close, Stanmore, Middlesex. Since the application, the part of land belonging to the now dissolved A W Goodhew & Sons Ltd is now being handled by The Treasury and the part of land owned by Mr D Garber has been sold to T & R Afzal.

6. Committee History

Within the 20 year qualifying period the land has been subject to 4 planning applications, these have all been on the part of land known as The Old Observatory. Copies of planning decisions are attached as Appendix G.

The first was an application for fencing and vehicular access; this was approved on 8 June 1989 for a limited period.

The second was an outline for a detached bungalow; this was refused on 8 June 1989.

The third was an outline for a pair of semi-detached bungalows; this was refused on 07 March 2003.

The fourth, for an outline for a bungalow, was refused on 3 November 2003. The decision was appealed against and dismissed by the Planning Inspectorate on 23 February 2004.

One complaint has been brought to the attention of the Enforcement Team, within the 20 year period relevant to this application. This was during September 2003 against a fence erected on site; at the time of the visit by an officer the fence had been removed.

On 26 November 2004 an application to register The Green, Stenbury View, Wroxall, as a Town or Village Green was received by the Council. The application did not include the Old Observatory site. Following the submission of the present application this one was withdrawn on 11 January 2006.

COUNCIL POLICY

7. As registration authority, the Council has a duty to fairly dispose of the application on its merits and furtherance of Council policy objectives is not relevant.

FORMAL CONSULTATION

8. Fire

It was considered that no consultation was necessary.

9. Police

It was considered that no consultation was necessary.

10. Relevant Council Departments

On 4 April 2006 notification was sent to Property Services and Parks and Beaches. On 05 April 2006 notification was sent to Local Land Charges.

11. Parish and Town Councils

On 10 April 2006 notification was sent to Wroxall Parish Council.

12. Local Member

On 10 April 2006 notification was sent to Cllr Jilly Wood.

THIRD PARTY REPRESENTATIONS

13. Objectors

Objections were received from Mr Garber, Mr and Mrs Dyer, Mr B Stacey, T and R Afzal and Mr N Beg acting on behalf of Mr A Azal, the new owner of the Old Observatory site (see Appendix E).

The applicant’s response to the objections in Appendix E is attached as Appendix F.

14. Supporters

On 11 May 2006 Wroxall Parish Council wrote to give the Parish Council’s support to the application.

On 24 May 2006 Ms A Sheath wrote stating a fence surrounded the Old Observatory after the storm of 1987.

FINANCIAL IMPLICATIONS

15. The cost of commissioning an independent inspector’s report could amount to £5,000. The cost of holding a public enquiry could amount to over £20,000. There is no allocation within the budget for either of these eventualities.

LEGAL IMPLICATIONS

16. A paper summarising the general legal situation in regard to Town and Village Greens is attached at Appendix A. At the meeting of this Committee on 27 May 2003, Members considered a detailed report setting out an analysis of the law at that time relating to Town or Village Greens. The law in relation to this subject is particularly complex and also rapidly developing. A full analysis of the relevant law is beyond the scope of this report.

This report has been considered by the Council’s Legal Services prior to publication, and the Committee will also have access to their own legal advice at the meeting. The power to appoint an Inspector, should the Committee consider it necessary to do so, derives from the 1965 Act and 1969 Regulations, in conjunction with S111 Local Government Act 1972. Although there is no statutory force to the Inspector’s report, such a procedure has become a common one, and the practice of Registration Authorities seeking advice in this way has been referred to, without apparent criticism, in judgments from the House of Lords and Appeal Courts.

It is important that members note the appointment of an Inspector is to assist the Council in its registration function. Responsibility for determination remains with the Committee throughout.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

17. It is not anticipated that the options placed before the Committee will have any implications under the Crime & Disorder Act 1998.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

18. A matter to be considered is whether the Council's role as Registration Authority and Planning Authority is compatible with Article 6 of the European Convention on Human Rights.

It is advised that there is no violation of Article 6 for the following reasons:

(a) any decision taken by the Council is subject to subsequent control by judicial review. Although the statutory provision for judicial review is limited to the legality of the decision and not its merits, it constitutes sufficient compliance with the Convention; and, in any event;

(b) primary legislation, namely the Commons Registration Act 1965, requires the Council to take the decisions. Section 6 (2) of the 1998 Act provides that public authorities can act in a way incompatible with Convention rights where the public authority must act because of the provision in primary legislation;

(c) the Council remains the decision maker even if an Inspector is appointed. It may, however, be argued that the effect on Article 6 is not neutral as the inspector introduces an additional element of judicial objectivity.

A further matter that needs to be given consideration is the application of the rights set out in Article 1 of the First Protocol. This states that every natural or legal person is entitled to the peaceful enjoyment of his possessions. It has to be accepted that a recommendation to accept that this land be designated as village green may interfere with the rights and freedoms of the owner of the land to use the land as he may wish, this has to be balanced with the like rights of the community.

In determining the application it will be necessary to determine whether the rights of any individual under Article 1 are restricted and whether this is proportionate and in pursuit of a legislative objective. If the recommendation is accepted it is advised that there is no violation of Article 1.

OPTIONS

19. The Committee can:

a) Accept the application and register the land as a Town or Village Green.

b) Partially accept the application and register a part of the land as a Town or Village Green, whilst partially rejecting the application and not registering a part of the land as a Town or Village Green.

c) To reject the application and not register the land as a Town or Village Green.

d) Appoint an independent inspector and/or hold a public enquiry to hear the evidence.

EVALUATION/RISK MANAGEMENT

20. A considerable volume of evidence has been submitted and both parties have had an opportunity to comment on the body of evidence produced by the other. All evidence submitted to the Registration Authority at the time of writing has been accepted and considered. Before consideration of the evidence begins it is necessary to establish whether or not an enquiry or report from an independent inspector is appropriate in this instance.

SHOULD THE COUNCIL APPOINT AN INSPECTOR?

21. In a recent case, separate to the present one, (The Field or Old Allotments, Whippingham) which was considered by the Committee at its meeting of 27 June 2003, the reasons for appointing an Inspector were considered. The report at that time stated:

“In contested or difficult cases, it is good practice for the registration authority to appoint an inspector, usually experienced counsel, to hold a public inquiry. The inspector hears all the parties and considers all the evidence, and then reports and recommends to the registration authority. The authority is not bound by the inspector’s recommendations, but may generally be expected to adopt them and decide accordingly. Such an inquiry enables an independent judicial element to be injected with an objective result. The expense involved may well be justified in the saving of officer time and in the quality of the decision, which will be very unlikely to be susceptible to judicial review.”

All of these statements are also true for the present case. The report went on to suggest that for the previous case, an Inspector should be appointed. The reasons given were:

· “The conflicts of evidence are likely to require the invitation of statement makers to answer questions on their evidence”.

· “An inspector is better able to issue directions and resolve disputes as to process and admissibility of evidence”.

· “A determination hearing is otherwise likely to last several days”.

It is appropriate to determine whether or not the present application is worthy of the same consideration. The key question is whether or not it will be necessary to cross-examine witnesses. In the ‘Field or Old Allotments’ case, extensive cross-examination was required to reconcile a number of contradictory witness statements. Also, in that case, there were few paper records in existence to support the statements made by the witnesses.

In the present case, it is not recommended that an Inspector should be appointed. The reasons for this are as follows:

· The volume of evidence is considerably less in the present case than was available in the ‘Field or Old Allotments’ case.

· Although there is some conflict of evidence, the extent of this conflict is limited.

· Significant documentary evidence has been produced by both objector and applicant, which is able to inform the decision of the Committee.

· There is a likely delay of as much as a year if an Inspector is appointed. Such an appointment should only be made if it is the only appropriate course of action.

CONSIDERING THE EVIDENCE

22. There are a number of tests which the applicant is bound to satisfy before any application can be accepted. The applicant makes their claim under s22(1) of the Commons Registration Act 1965, as amended by s98 of the Countryside and Rights of Way Act 2000. She sets out to prove that there has been (1) use of the land by a significant number of inhabitants of any locality, or of any neighbourhood within a locality; (2) for lawful sports and pastimes; (3) as of right; (4) for not less than twenty years. To properly accept this claim, the Committee must accept that the Applicant has satisfied all of these tests.

The evidence appears to relate differently to the two parts of the site, the Old Observatory plot, shown as a square in the middle of the site on the maps provided with the evidence of the application, and The Green, shown to be the land surrounding the Old Observatory. There are important differences in the evidence submitted in respect to these two areas and therefore they will be considered separately where necessary.

23. Use of the Old Observatory and The Green by a significant number of inhabitants of any locality.

The Applicant’s evidence: 17 of the 19 questionnaire submitters showed that they used The Green and the Old Observatory. The applicant claims the users of the site are drawn from local inhabitants. It is reasonable to assume when looking at the questionnaires submitted as evidence in the application that the local inhabitants referred to are those of Stenbury View. Stenbury View consists of 67 properties of which the occupants of 19 of these properties filled in questionnaires to be used with the application.

The Objectors evidence: The owner of the of the Old Observatory plot at the time the application was put out for consultation, Mr Garber, reviewed the applications offered in evidence and felt the it was not a significant number of inhabitants who used the area in question. This is detailed in point 5 of his application where he suggests there are 90 families that live around the locality of which only a small proportion filled in the questionnaire in support of the application.

Evaluation: The evidence submitted in support of the application is as already stated from the occupants of 19 of the properties around Stenbury View. It should be noted that only 17 of these claim to use the Green. 2 of the 17 do not show a valid use as a lawful sport or pastime as they just use the area as a shortcut. If it is taken there are 67 properties in Stenbury View the amount of occupants shown to be using the area in the application when expressed as a percentage is 22%. This however does not assist in determining whether a significant number of inhabitants use the land in question as there is no guidance as to what constitutes this. Mr Belben, in his report to this committee on 22 September 2004 on the ‘Field or Old Allotments’ case said:

“The word “significant” does not mean considerable or a substantial number. A neighbourhood may have a very limited population and a significant number of the inhabitants of such a neighbourhood might not be so great as to be properly described as a considerable or substantial number: see: R –v- Staffordshire County Council ex perte Alfred McAlpine Homes Limited (“Staffordshire”). The word “significant” is an ordinary word in the English Language and whether or not user is by a significant number of people is very much a matter of impression. The number of people using the land in question must be sufficient to indicate that their use signifies that it is in general use by the local community for informal recreation, rather than an occasional use by individuals as trespassers: Staffordshire.”

Whilst the evidence does not show a majority it does show that one in five of the occupants of the locality use the green for some or all of the qualifying period. It is felt that this is sufficient to constitute a significant number of the local inhabitants shown to use the Green

The applicant has proven that, on the balance of probabilities, use of the land was by a significant number of inhabitants of a neighbourhood within a locality.

24. The Green and Old Observatory. Use of the land for lawful sports and pastimes.

The Applicants evidence: The application describes a number of activities which are undertaken on the site, these include dog walking, football, meeting place to chat, walking and playing games with the children. All of these can be described as lawful sports and/or pastimes.

The Objectors Evidence: There is no specific objection from Mr Garber regarding the use of the Old Observatory for lawful sports or pastimes. He does however make a comment that the land is uneven to the extent that an injury could be caused in the attempt to cross it. Other objections are raised on this matter by Mrs Dyer and Ms Ann Sheath. They both refute the claim that the area is used for lawful sports and pastimes. The only use seen by them is to toilet dogs.

Evaluation: The activities claimed are lawful sports and pastimes and though these have not been witnessed by two of the objectors it does not mean they were not done. 17 of the 19 questionnaires submitted in the application all state they have witnessed both The Green and Old Observatory being used for lawful sports and pastimes, all 19 either state they have either witnessed or participated in lawful sports or pastimes in both areas. Mrs Dyer and Ms Sheath also say they have seen the area being used to toilet dogs, which could be considered a part of dog walking. In this case the objectors have not cast sufficient doubt upon the applicants’ evidence to presume otherwise. Mr Garber’s statement that the ground in so uneven that you could cause yourself an injury crossing it could be dismissed. This is because the photographic evidence provided by the applicant shown in Appendix F clearly shows the grass cut and well managed in the area of the Old Observatory which would not be possible to be done if the ground was that uneven.

The applicant has proven that, on the balance of probabilities, use of the land was for lawful sports and pastimes

24. The Green, Use of land as of right.

The Applicants evidence: The evidence submitted regarding the use of the area makes no distinction between The Green and Old Observatory. The information provide in 17 questionnaires submitted suggest that the inhabitants have carried out various activities on the Green openly without anybody trying to stop them. In answer to the question in the questionnaire asking “Have you ever seen notices or fences that might have been intended to prohibit use of the land” 11 have answered no and 6 have stated the existence of a fence or fence posts. It is presumed that this is around the Old Observatory as 3 of these state the position of the fence or posts and the other 3 just state its presence at some point.

The Objectors evidence: No objection was submitted by the land owners of The Green as to the use of The Green as of right.

Evaluation: Given that no evidence was submitted that proves that the locals of Stenbury View do not use The Green as of right it could be presumed that the applicant has shown the Green was used as of right.

25. Old Observatory: Use of the land as of right.

The Applicants evidence: The applicant has put forward photographic evidence (shown in Appendix F) in their rebuttal to the objectors’ statements of fencing being present around the Old Observatory. This shows that there was no fence present at the time the photographs were taken. None of the photographs shown give detail as to when they were taken, but it is reasonable to presume that it was at some point over the given 20 year period.

As already stated the questionnaires submitted in evidence with the application makes no distinction between the two areas. However, in the case of the Old Observatory there are differing opinions as to whether the plot had been used as of right. Even though all questionnaires say in the final statement that they have not been prevented from using this area, 6 of them state that a fence or fence posts were erected in the area of the Old Observatory. This was considered to be in an attempt to discourage the use of the land by the local inhabitants. If the fence was erected, it is said to be around 2003 whilst a planning application was submitted for development of the Old Observatory.

The Objectors evidence: All written objections concerning the Old Observatory state that there was a fence around the site at some point in the recent past. Mr Garber states that the Old Observatory was “at all times fenced to stop access by local people, but with broken and damaged fences in places until they were replaced one year ago by new strong fences”. Similar comments are made to this by the new owners of the Old Observatory, these being Tusneem & Raabiah Afzal and Abdul Azal. Mr Noman Beg, the representative of Mr Azal, comments in his letter of objection, that fencing was present until the high winds of 1987 when they became unstable. Local residents of the area Mrs Dyer and Mrs Sheath only refer to a fence being erected around the Old Observatory after the storms of 1987, this being described as a ‘flimsy fence’. It is considered by all objectors that the fence was erected to prevent entrance to the land.

Evaluation: Whilst it is stated that a fence has been erected by both objectors and in some of the questionnaires submitted as evidence by the applicant, none give tangible evidence of a fence. The only exception to this is a poor quality photo copy of an aerial photograph sent in by Mr Garber showing dots referred to as fence posts. The quality of this is so poor it would be hard to verify that these are posts in the ground.

Mr Garber’s statement that the area has always been fenced can be dismissed as the photographic evidence in Appendix F shows clearly that there is no fence present at various points of the 20 year period. Similarly the statements of Tusneem Afzal and Mr Noman Beg can also be dismissed as contrary evidence is shown in the photographs in Appendix F, which show the Old Observatory whilst it was still standing having no fence around it.

Whilst it is possible that a fence was erected around the unstable building, no specific evidence has been given as to where this fence was positioned. In balance of probability it was just a few metres from the building to keep people out in the interim between the storm and its demolition.

The evidence in 6 of the questionnaires submitted by the applicant describe either a fence or fence posts being present that would have hindered access to the Old Observatory. It could be assumed by the information given that this was in 2003, at the time of a planning application being submitted. The presence of a fence can partially be corroborated as Council records show a planning enforcement officer was called to investigate a complaint of a high fence around the Old Observatory. The enforcement officer, Mr L Harper, closed the case as the fence had been removed prior to his visiting the site on the 24 February 2004.

The length of time this fence was up for could be surmised as it is said that the fence was erected at the time a planning application was submitted to the council. There were two applications submitted in 2003, but it could be assumed the fence was erected when the second application was registered on 1 September 2003 as the complaint about it came in on the 23 September 2003. This application was refused and appealed against which was dismissed by the planning inspector in February 2004. In the decision notice the planning inspector describes the site, but does not mention a fence being present at the time of his site visit. A copy of the inspector’s decision forms part of the applicants rebuttal detailed in Appendix F. From this it is possible to make a judgement that in the balance of probability the fence was standing for no more than 1 or 2 months. The exact location of the fence is not given in any of the reports, but if it were erected as a result of a planning application it could be assumed it was around the perimeter of the Old Observatory plot.

If it is accepted that a fence was present for a certain period and seen as prevention of access to the Old Observatory it is unlikely that this area of land was used as of right, as described by the applicant.

If the presence of a fence was to be dismissed it should be pointed out that the area of the concrete showing the foot print of the Old Observatory can not be made a village green as use as of right of this area whilst the building was still standing was not allowed. Entrance to the Observatory was by permission as this was a private owned building and not shown to be open to public access. As this building was still standing in 1987 it can be assumed that this area, being the footprint of the building, had not always been used as of right for the 20 year period described in the application and as such use is not founded.

The applicant has proven that, on the balance of probabilities, use of The Green was as of right.

The applicant has not proven that, on the balance of probabilities, use of the Old Observatory was as of right.

26. Use of land for not less than 20 years.

Those areas of land, which the applicant has not proven to have been used as of right (i.e. the Old Observatory), can not be considered to have been used as of right for 20 years. The arguments in the previous section concerning use as of right can be applied to the question of whether use was for not less than 20 years, and if they are so applied it is reasonable to assume that the user right on that land was significantly interrupted, and even if it was not, the matter does not fall to be decided on the point.

The question of use for not less than 20 years therefore remains to be tested on The Green.

The Applicants Evidence: All questionnaires show use of The Green, this being the area surrounding the Old Observatory. Of the 19 questionnaires submitted, 7 show continuous use throughout the 20 year period specified, 10 of the other questionnaires submitted detailed use during a part of the relevant period.

The Objectors Evidence: No evidence was submitted by any of the objectors that was found contrary to that submitted by the applicant regarding The Green, this being the area surrounding the Old Observatory.

The applicant has proven that, on the balance of probabilities, use of The Green was for not less than 20 years.

The applicant has not proven that, on the balance of probabilities, use of the Old Observatory was for not less than 20 years.

RECOMMENDATION

27. To partially accept the application and register The Green as a Town or Village Green.

AND

To partially reject the application and not to register the Old Observatory as a Town or Village Green.

APPENDICES ATTACHED

Appendix A Paper providing background information and setting out the legal framework for Town/ Village Green applications

Appendix B B1 showing whole of the application site

B2 showing Old Observatory boundary

B3 showing site of recent planning application

B4 showing site of Tree Preservation Order

Appendix C Original application

Appendix D Index of statements

Appendix E Copy of objection papers from:

J&J Dyer,

D Garber,

A Sheath

T&R Afzal,

Noman Beg, agent for A Azal.

Response from John Broughall, Estates Advisor to Treasury Solicitor.

Appendix F Response from V Starbuck to Objections in Appendix E

Appendix G Copies of Planning Decisions and Planning Appeals Decisions

Contact Point: Jerry Willis, Tree Officer, tel: 01983 823893 ext. 5549, email: [email protected]

DEREK ROWELL