Purpose : For Decision
Committee:
REGULATORY APPEALS COMMITTEE
Date: 11 MARCH 2003
Title: REGISTRATION
OF NEW TOWN OR VILLAGE GREEN LAND AT EAST COWES CASTLE ESTATE WOOD
PURPOSE/REASON
1. The Isle of Wight Council as registration
authority has received an application to register land at East Cowes Castle
Estate Wood as a Town or Village Green. The application is made under Section
13 of the Commons Registration Act 1965 and the New Land Regulations of 1969. A
paper setting out the background and legal requirements for registration is
attached as Appendix A for Members’ information and reference.
The application was
advertised and the consultation procedure required by the 1965 Act has now been
completed. The application is brought before the Committee for decision.
DETAILS OF THE APPLICATION/ORDER
2. The application, made by Mrs Tracy Rackett of
8 Sylvan Avenue, East Cowes, is supported by 5 statements of use in the form of
completed questionnaires. These are summarised at Appendix D.
LOCATION AND SITE CHARACTERISTICS
3. The land the subject of the application is
shown edged with a thick black line on the plan attached as Appendix B.
The land, which lies to the west of Sylvan
Avenue, East Cowes, Isle of Wight having an overall area of approximately 1
hectare (2.4 acres).
The application land is partly fenced,
incorporating the area of regenerated woodland to the north. There appear to be
three points of entry to the land – one at the end of Oak Tree Way and one at
Sylvan Avenue, both points being signed – see Appendix E. A further entrance is
from Church Path, to the west. The sign at the entrance at Oak Tree Way is
obscured by brambles and currently not legible, but the land from this point is
also inaccessible, being somewhat overgrown with dense scrub.
The application land can be accessed from
Sylvan Avenue, via the area of regenerated woodland, which has no physical
boundary distinguishing the two parts.
The application land comprises trees and
scrub, with pathways worn through the undergrowth.
RELEVANT HISTORY
4. Factual
The land is currently in the
ownership of the Isle of Wight Council and was originally acquired for a
replacement primary school site. Part of the site has been used, with the
consent of the Council, as a nature study area by Grange Road Primary School.
5. Committee History
The land has been the
subject of six planning applications, the first two, dating back to 1949 – the
demolition of East Cowes Castle – approval given and proposed residential
development – approval given. In 1967 a planning application was lodged for a
proposed residential development – approval given and 1969 a planning
application was received for the proposed building of a school – no formal
decision given although approved by the Plans Sub-Committee. The fifth and
sixth, proposed residential development applications were received in 1997 -
withdrawn and 2001 – awaiting outcome.
COUNCIL POLICY
6.
It
is not anticipated that the options placed before the Panel will have any
Council Policy implications relevant to the Committee’s decision other than as
described elsewhere in this report.
FORMAL CONSULTATION
7. Fire
No consultation was necessary in connection with the Fire
implications of this report.
8. Police
No consultation was necessary in connection with the Police
implications of this report.
9. Relevant Council Departments
19 April 2002 Legal Services
received the application on behalf of the Countryside Section.
On 17 May 2002 notification
was sent to: Land Charges, Property Services, Development Control, Parks &
Beaches and Rights of Way.
10. Parish and Town Council
On
21 May 2002 notification was sent to: East Cowes Town Council.
11. Local Member
On 21 May 2002 notification was sent to: Councillor Margaret
Lloyd.
THIRD PARTY REPRESENTATIONS
12. Objectors
One objection was received
from the Isle of Wight Council’s Property Services which is mentioned in
paragraph 19 – Evaluation.
13. Supporters
Five questionnaires were
submitted in support of the original application, which are mentioned in
paragraph 19 - Evaluation.
A copy of the objection
received from the Isle of Wight Council’s Property Services – memorandum dated
15 July 2002 and accompanying supporting evidence, was sent to the applicant,
with letter dated 14 November 2002, requesting the applicant consider the
application and make any comments on the objection. No response was received
from the applicant.
A further letter dated 10
December 2002 was sent to the applicant again requesting consideration of the
application and confirmation of instructions. 21 January 2003, the applicant
called, acknowledging receipt of abovementioned correspondence but that she had
been unable to respond due to personal commitments. The applicant requested
that the submission of the report to Committee be delayed to allow her to
gather and submit further evidence in support of the application.
28 January 2003 after the
period for response, agreed between the applicant and the Council had lapsed,
the applicant called and confirmed that she would like the Council to proceed
with the report to Committee for decision, as she did not have sufficient time
to devote to following up any further evidence.
FINANCIAL IMPLICATIONS
14. 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
15. See Appendix A.
IMPLICATIONS UNDER THE CRIME AND DISORDER ACT
1998
16. 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 1998
17. 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 particularly where
the land the subject of the Village Green application is owned by the Council.
This would mean that the Council would be determining issues on its own land
where it might be interested in disposing of that land and it is questioned
whether the Council could be independent and impartial as required by Article
6.
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.
In circumstances where land
is privately owned then Article 1 of the First Protocol (right to possessions)
would have to be considered. However, in this instance, it is not held to be
relevant as the land is the ownership of the Isle of Wight Council.
Nevertheless, where evidence
is in dispute or contentious, it would be best practice for the application to
be referred to an independent inspector and/or public enquiry to consider all
evidence and submissions.
OPTIONS
18. a) To accept the
application and register the land as a Town or Village Green.
b) To reject the application on
the grounds that the evidence does not show that use was as of right for the
duration of the qualifying period.
c) To appoint an
independent inspector and/or hold a public enquiry to hear the evidence.
EVALUATION
19. The stated ground for the application is that
the land has become a Town or Village Green by (1) use of the land by local
inhabitants; (2) for lawful sports and pastimes; (3) as of right; (4) for not
less than twenty years.
For the application to succeed, the applicant must prove her
case on all four parts of the stated ground. The four parts are considered in
turn.
a)
Use By Local Inhabitants
i) Applicant’s
Submission
The five questionnaires
submitted as evidence in support of the application have been completed by
residents of East Cowes attached as Appendix D (summarised in table and also
full copies).
ii) Objector’s
Submission
No comment was made in respect of this evidence.
iii) Comments
The evidence indicates that the land has been
used predominantly by the inhabitants of the immediate locality. No contrary
evidence has been presented.
b) Lawful Sports and
Pastimes
i) Applicant’s
Submission
The questionnaires identify a variety of
activities enjoyed on the land. These are summarised in Appendix D, and include
picnicking, play, walking, nature study, relaxation, birdwatching, squirrel
watching, and walking the dog.
ii) Objector’s Submission
No comment was made in
respect of this evidence.
iii)
Comments
‘Lawful Sports and Pastimes’ is an expression
not just restricted to organised games and activities. The recent House of
Lords ruling in the Sunningwell case held that informal activities such as dog
walking and playing with children are sufficient to justify registration so
long as there is an established pattern of use. The recreational activities
described as being enjoyed on the land can be said to constitute lawful sports
and pastimes as that phrase is now understood. No contrary evidence has been
presented.
c)
As of Right
i) Applicant’s Submission
Table 19(c.i): Summary of evidence
|
Questionnaire
Number |
1 |
2 |
3 |
4 |
5 |
|
Did anyone ever give you permission to go onto the land? |
No |
No |
No |
No answer |
No answer |
|
Have you ever been prevented from using the land? |
No |
No (emphatically) |
No |
No |
No |
|
Has any attempt ever been made by notice or fencing or by any other means to prevent or discourage the use being made of the land by local inhabitants? |
Fences, notices and lack of maintenance |
Yes, Notice |
Yes, Notice |
Yes, discourage not prevent. Signs - ”No Right of Way” |
Yes, discouragement but not prevention. Fencing in places but gate in Oak Tree Way never locked. |
|
Gain/gained access via Oak Tree Way |
Yes |
Yes |
|
Yes |
Yes |
|
Gain/Gained access via Sylvan Avenue |
Yes |
Yes |
|
|
|
|
Gain/Gained access via Church Path |
Yes |
Yes |
Yes |
Yes |
Yes |
|
Years used during qualifying period |
1977-1990 |
1971-1990 |
1971-1990 |
1972-1990 |
1970-1990 |
The land is easily accessible and the
information provided in the questionnaires suggests that the inhabitants have
carried on the various activities openly without anybody trying to stop them.
All five questionnaires submitted state that the submitters were never
prevented from using the land, and three out of five also said that they used
the land without permission.
ii) Objector’s Submission
The Objector has provided evidence (Appendix
E), dating back as far as 1977 in the form of copy memorandum, letters,
estimates and photographs, showing the Council’s endeavours to keep the site
secure through the erection of and repeated repair of fencing due to vandalism
and erection of signs. It also indicates that for some of the qualifying period
the site was intended exclusively for use as a nature study area by East Cowes
Primary School, with the consent of the Council.
iii)
Comments
To establish the use is as of right is now
(since the Sunningwell judgement) only necessary for the inhabitants to provide
evidence that they have used the land without force, without secrecy and
without permission. Whilst some of the evidence provided by the applicant does
indicate that this has been the case, the evidence of the objector includes
some indications to the contrary some of which are supported by certain
statements provided by the applicant in the questionnaires. There are numerous
relevant documents, of which a sample are copied in Appendix E and itemised
here:
Item 3.3a: Memorandum from
County Estates Officer to County Architect 6 October 1978
This memo instructed the ‘reinstatement’ of
the chain link fence and erection of signs reading “IWCC No Public Right of Way
and No Dumping”, at both entrances (Sylvan Avenue and Oak Tree Way).
Item 3.3b: Extract from
minutes of Land Sub Committee 17 January 1979
The extract confirms that the fencing and
signs were erected subsequent to the memorandum in item 3.3a.
It also suggests that the fence was been cut
and repaired at least once in the intervening time, and that ‘children and
adults continue to gain access… by climbing adjoining elderly landowners’
fences’.
Item 3.3c: Order requesting
fitting of a new padlock and chain to the field gate off Oak Tree Way; 26
January 1982
This suggests that the boundary at Oak Tree
Way was secure at that time, and that an authorised keyholder was East Cowes
Primary School.
Item 3.3d: three recent
photographs of signs at Oak Tree Way and Sylvan Avenue.
Two of these signs are identical, one at each
entrance reading “IWCC Nature Study Area, No Right of Way, No Dumping”,
although the one at Oak Tree Way is obscured by a recent growth of bramble. A
third sign reading in part “The Isle of Wight County Council and Medina
Borough Council do not intend to dedicate this land for public use or as a
public highway” is erected at the Sylvan Avenue entrance. By referring to
IWCC all the signs must predate the establishment of the IW Council in 1995.
Discussion
Although there is no documentary evidence to
prove that the signs are the same signs which were erected in late 1978 or
early 1979, there is no evidence of any other signs having been erected, nor
any previous signs being removed or changed, and furthermore the wording is
consistent with the wording of the signs referred to in item 3.3a. The date of
origin of the third sign is not clear, and this sign should be disregarded as
it cannot be proven to have been in position during the qualifying period.
It is reasonable to conclude that the two
identical signs have been in place continuously, and therefore that during at
least a part of the qualifying period, from January 1979 to 1 January 1990,
signs were in place which indicated that the use of the site was not as of
right. For at least some of that time
fences were also in place which physically prevented access, and there is
evidence that these were effective at times during the qualifying period.
Four of the five questionnaires in support of
the application refer to the notices, and so these users were aware of the
signs but in two cases did not consider that the wording amounted to prevention
of access. Additionally, four out of five have accessed the site via Oak Tree
Way, where one sign is in position, and two out of five have accessed it via
Sylvan Avenue, where another two signs are in position. The one questionnaire
which states that the submitter has only entered the site from Church Path
nevertheless acknowledges the existence of the notices and therefore must at
some time have also used one or both of the other entrances. The evidence
provided by the applicant therefore suggests that none of the five
questionnaire submitters can have used the site without being aware of the
notices.
The signs at Sylvan Avenue are a short
distance north of and do not lead directly onto the application site, although
the path which they are on leads directly onto it. The sign at Oak Tree Way is
sited on the application site and clearly refers to it. There is no sign in
position at Church Path, which is the access from the West.
The application site is only a part of the
open space on the ground, and there is no discernable boundary between the
application site and the northern space which leads onto Sylvan Avenue. It is
not clear why this northern part was excluded from the application, and
certainly any person using the site would be unlikely to notice any difference
in status between the two areas.
d) For Not Less Than Twenty
Years
i) Applicant’s Submission
The applicant relies on use during the twenty
year period from 1970 to 1990 and continuing. Of the five questionnaires
submitted in support of the application, all of them indicate use without
interruption throughout some or all of the qualifying period (see summary of
evidence table).
ii) Objector’s Submission
The evidence of the objector (See 3.3 above)
does not dispute the assertion that people have used the land from time to time
during the qualifying period, indeed the evidence submitted suggests that
although they did so, the objector took steps to prevent this. The objector has
not submitted any evidence which directly indicates how successful or otherwise
these attempts to prevent access were.
RECOMMENDATIONS
20.
i.
The stated ground for the application is
that the land has become a Town or Village Green by (1) use of the land by
local inhabitants; (2) for lawful sports and pastimes; (3) as of right; (4) for
not less than twenty years. For the
application to succeed, the applicant must prove her case on all four parts of
the stated grounds. The evidence suggests that the use of the land was (1) by
local inhabitants, and (2) for lawful pursuits and pastimes. The evidence does not
suggest that use of the land was (3) as of right. On the question of whether
this usage (4) occurred for twenty years, the evidence is not conclusive.
However the evidence is not inconsistent with the view that that the use,
whether as of right or otherwise, did occur over the twenty year qualifying
period.
ii. On the grounds that the use was not shown to be as of right it is
recommended that the application be rejected.
M
J A FISHER
Strategic
Director
Corporate
and Environment Services