Minutes of a Meeting of the Human Resources and Miscellaneous Appeals Sub Committee held on 1 September 2006

11. MINUTES

The Chairman stated that the presence of the Chief Legal Advisor at the last meeting should be reflected in the minutes.

RESOLVED :

THAT, subject to the above amendment, the minutes from the meeting held on the 29 June 2006 be confirmed.

12. DECLARATIONS OF INTEREST

The Committee declared that it had previously used and enjoyed the Cowes Bandstand.

13. REPORT OF THE CHIEF LEGAL ADVISOR

The Chairman welcomed all those present and introduced members of the Committee. He outlined the procedure that the meeting would follow.

The report of the Chief Legal Advisor, in respect of an application for the registration of New Town or Village Green land comprising the Bandstand, the Parade, Cowes, Isle of Wight, was presented to the Committee by the Council’s Legal Team Leader.

The Chairman asked the Committee’s legal advisor for the date that the Committee should consider evidence to. The Committee was informed that the question related to the 20 year period, which states that the Bandstand must have been used for 20 years unbroken. That period ended and therefore went back from the date of the application (1 August 2000), the authority for this was the ‘Trap Grounds’ case.

The Committee was informed that, in order for the land to be registered as a Town or Village Green, the applicants must prove that the land satisfied all four parts of the criteria set down for registration:

a. that the land was used by a significant number of local inhabitants

b. for lawful sports and pastimes

c. as of right

d. for not less than 20 years

The Committee was informed that if the land failed on any one of the criteria set out above then the application would fail.

The Legal Team Leader informed the Committee that prior to the start of the hearing it had been brought to her attention by the Committee Administrator that one of the objectors, Mrs Hammond, had wished to withdraw her objection to the application.

It was stated that one issue Members needed to be aware of was that the Council was the landowner as well as the determining authority and that the implications of the Human Rights Act were set out under paragraph 23 of the report. Members’ attention was drawn to paragraph 24 of the report which explained why, in this case, the Council believed there was no violation of Article 6 of the European Convention on Human Rights.

The Committee asked the Legal Team Leader whether or not she had knowledge of the Council’s future intentions for the land. The legal advisor to the Committee stated that motives for the application and the landowner’s intentions for the land were irrelevant in determining whether land should be registered as a town or village green and could not form any part of the Committee’s decision making. The Committee had to concentrate solely on the four criteria previously stated.

The Legal Team Leader informed the Committee of the following options available to it:

1. To accept the application and to register the land as a town or village green.

2. To reject the application on the grounds the criteria are not met.

3. To appoint an independent inspector and/or hold a non-statutory public inquiry to hear the evidence and make a recommendation to the Committee.

The Committee asked as to the purpose of the independent inspector and the non-statutory public inquiry. It was stated that the purpose of each would be to hear the evidence and make a recommendation to the Committee. It would, in any case, fall back to the Council to determine the application.

Members were informed that following the precedent set by the ‘Trap Grounds’ case there was no restriction by reference to the size or character of such land, but that “the essential characteristic of a town or village green is that by immemorial custom the inhabitants of the town, village or parish should have acquired the right of playing lawful games thereon and enjoying it for the purposes of recreation”. Members were informed that the latter statement was referred to by Lord Hoffman in the House of Lords ‘Trap Grounds’ case.

The Legal Team Leader informed the Committee that she had not taken issue with the first two criteria, that the land had been used by a significant number of local inhabitants and that it had been used for lawful sports and pastimes. However, the application had failed to prove that such use was ‘as of right’ and for ‘20 years unbroken’ as, on further investigation with Wight Leisure, evidence was found to suggest that the public had been excluded periodically from the Bandstand, particularly when bands had applied for written permission from the Council to play on the site during Cowes Week.

Members were made aware that it was necessary for the applicants to provide evidence that the land was used without force, without secrecy and without permission. It was put to the Committee that by asserting its right to exclude the public (i.e. the Council giving specific permission to bands who were performing), the Council had made it plain to the public that their use at other times was permitted because it chose not to exclude them.

The Legal Team Leader recommended to the Committee that the application be rejected on the grounds that the evidence did not show the use was ‘as of right’ or ‘for not less than 20 years’.

The Committee asked a question related to the bands which had played on the Bandstand and the position of the public ‘listening to the music’ on the Parade. An important point was raised that, though members of the public had listened to the bands, which were playing on the Bandstand, they had actually been excluded from the Bandstand land itself and were listening to the music on the Parade.

The applicants presented their case and explained that neither of them had any vested interest in Cowes Bandstand. It was stated that it appeared the application rested on the ‘as of right’ criteria. The Committee was informed that the applicants had seen the public use the bandstand for sitting on and that it was out of politeness not exclusion that the public remained off the bandstand whilst bands were playing on it. It was also pointed out to the Committee that the title deeds to the land had been lost and that it was important to know what the original benefactor wished the land to be used for. It was stated that the Cowes populace had a moral right to use the Bandstand and that the people of Cowes had never been excluded from the land in question. The importance of the Bandstand to the Cowes community and its purpose as a memorial was highlighted. It was concluded that the use of the Bandstand by the public had not been interrupted and that the ‘as of right’ argument had to embrace the morality of the situation. The applicants informed the Committee that the Council’s website listed the Bandstand as a public open space and that the ‘exclusion’ argument was a frail reason on which to reject the application.

The Committee asked a question with regards to Cowes Urban District Council as the planning applicant and whether any covenants had been imposed on the land in question prior to the construction of the Bandstand. The legal advisor informed the Committee that it mattered not what covenants may or may not have been imposed nor did it matter legally what the original benefactors intentions were when he gave the land.

The Committee asked the applicants whether the Bandstand was originally built as a memorial or as a place of relaxation. The answer to the question was unknown.

Having read the papers and heard submissions from the Council’s Legal Team Leader and the applicants the Committee sought legal advice and considered its decision. The Committee was informed that in making its decision careful attention should be paid to the ‘as of right’ criteria.

The Committee expressed its disappointment that no representative from the Council’s Property Services took part in the proceedings, though it was acknowledged that a member of Property services was present in the public gallery in his capacity as a member of the public.

The Committee felt that all four criteria for registration were met in particular :

1. The Committee were satisfied that a significant number of the local inhabitants used the land in question in a manner consistent with the other criteria notwithstanding the influx of tourists in the summer.

2. The Committee were satisfied that the pastimes outlined in the supporters’ evidence were lawful.

3. The permission granted to some organisations to play music in the bandstand did not break the chain of “as of right” ….. “for 20 years”. The Council’s actions could not be viewed as implied permission to use the area that would have defeated the application.

RESOLVED :

THAT, the application be accepted and to register the land outlined in the application as a village green.

CHAIRMAN