Purpose: for Decision
Committee: REGULATORY APPEALS COMMITTEE
Date: 11 APRIL 2003
Title: REGISTRATION OF NEW TOWN OR VILLAGE GREEN LAND
SOUTH EAST OF OSBORNE WORKS, WHIPPINGHAM ROAD, EAST COWES
PURPOSE/REASON
1.
The Isle of Wight
Council as registration authority has received an application to register land
south east of Osborne Works, Whippingham Road, East Cowes 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 Mr Brian Taylor of 1 Matthews Cottage,
Barton Estate, East Cowes, is supported by 41 statements of use in the form of
letters and completed questionnaires. A summary is set out in Appendix C.
LOCATION AND SITE CHARACTERISTICS
3. The land the subject of the application is shown edged with a
thick black line on the plan as Appendix B.
The land lies directly to the south east of Osborne Works, Whippingham
Road, East Cowes, Isle of Wight, and has an overall area of approximately 3.023
hectares (7.47 acres).
The application land is currently inaccessible to the public and
therefore a comprehensive description cannot be given. The northeastern
roadside boundary consists of recently renovated chain link fencing with
concrete posts backed with established conifers. There appears to be one main
point of entry to the land, via a large, metal gate (currently secured)
situated approximately halfway along the boundary length.
There is evidence, in the form of a worn pathway, that a gap in the
perimeter hedging has been used as a further access point in the southeastern
corner of the field. The remaining boundaries appear to be a combination of
chain link fencing, trees and hedging.
The application land is grassland. It is crossed by a number of tracks.
RELEVANT HISTORY
4. Factual
The land is not registered at HM Land Registry and
therefore no information is held there regarding ownership. However the land is
apparently in the ownership of GKN plc, as a Certificate B under Article 7 of
the Town and Country Planning (General Development Procedure) Order 1995 was
received by the Council dated 22 April 2002. This certifies that the land is in
the ownership of GKN plc, PO Box 56, Redditch, Worcestershire B88 0TL. The certificate was received as a part of
the planning application referred to in paragraph 5 and was accepted by the
Council at that time. Solicitors acting for the GKN group of companies have
stated in their letter of objection dated 17 December 2002 (Appendix F) that
the land is owned by GKN Aerospace Services Ltd.
5. Committee
History
The land has been the subject of three planning
applications, the first one, dating back to 1957– the siting of a caravan on a
smallholding - was refused.
In 2002 a planning application was lodged for use of
land as commercial vehicle trailer park – approval was given. This consent has
not yet been implemented.
In 2003 an application was received for variation of a
condition in the previous consent – to allow use of the site on Sundays and
bank holidays. This is awaiting determination.
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
It was
considered that no consultation was necessary.
8. Police
It was
considered that no consultation was necessary.
9. Relevant
Council Departments
24 June 2002 Development Control was notified of
receipt of the application.
08 July 2002 Legal Services was notified of receipt of
the application in order to effect Local Land Charges searches on the site.
On 12 November 2002 notification was sent to:
Committee Services, Local Land Charges, Development Control, Planning Reception
and East Cowes Library.
10. Parish and Town Council
The application land does not fall within the
boundaries of any Parish or Town Council.
11. Local Member
On 12
November 2002 notification was sent to Councillor Charles Hancock.
THIRD PARTY REPRESENTATIONS
12. Objectors
One objection was received from Wragge & Co
Solicitors on behalf of their client, GKN Aerospace Services Ltd. This is shown
in Appendix F. The objection included an assertion that the evidence was
insufficient on all four counts to prove the existence of a Village Green. No
contrary evidence or supporting statements were offered with this assertion.
13. Supporters
41 statements of use, in total, in the form of letters and
completed questionnaires were submitted in support of the original application,
which are mentioned in paragraph 19 – Evaluation.
A copy of the objection letter of 17 December 2002,
received from Wragge & Co Solicitors on behalf of their client, the
landowner, GKN Aerospace Services Ltd was sent to the applicant on 7 January
2002, with accompanying letter inviting the applicant to consider the
application and make any comments on the objection.
30 January 2003 the applicant made a further
submission of supporting letters and questionnaires from local residents –
summarised in Appendix C.
A further letter - and accompanying marked-up plan -
was received from the applicant dated 6 February showing the estimated boundary
of the area covered by allotments in 1981 – Appendix E.
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.
If it is determined that the ownership of the land cannot be
established, the matter must be passed to the Commons Commissioners for
determination. Depending on the outcome of their decision, the land may be
vested in the Isle of Wight Council as there is no Town or Parish Council in
that area. There would be an ongoing maintenance liability for which there is
no existing budget provision.
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.
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.
A further matter that needs to be given consideration
are 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. Insofar as there is an
interference with the rights of the owner, it is advised that such interference
is considered necessary for the protection of the rights and freedoms of others
and in accordance with the relevant primary legislation. Furthermore, it is
considered that such an action is proportional to the Council's legitimate aim
as encapsulated in the UDP and the Community Plan and in the public interest.
It is advised that there is no violation of Article 1 for these reasons.
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 of insufficient evidence.
c)
To accept the
application in part and to register a part of the land as a Town or Village
Green (see paragraph 19 (d)).
d) 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 his 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
41 statements in the form of letters and completed
questionnaires submitted as evidence in support of the application have been
completed by residents of Whippingham and East Cowes as Appendix C (summarised
in table and also full copies).
ii) Objector’s Submission
The objector comments that ‘the evidence supporting
the application does not disclose that a significant number of qualifying
inhabitants used the site for lawful sports and pastimes during the 20 year
period from June 1981 until June 2001’.
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 C, and include walking, nature study,
walking the dog, fruit picking, riding horses and painting.
ii) Objector’s Submission
The objector comments that ‘the evidence supporting
the application does not disclose that a significant number of qualifying
inhabitants used the site for lawful sports and pastimes during the 20 year
period from June 1981 until June 2001’.
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
The information provided in the questionnaires suggests that the
inhabitants have carried on the various activities openly without anybody
trying to stop them. All the questionnaires submitted state that the submitters
were never prevented from using the land, and that they used the land without
permission. There is no reference to any sign or other indication that use of
the land was not as of right.
ii) Objector’s
Submission
The objector comments that ‘the evidence supporting the application
does not disclose that a significant number of qualifying inhabitants used the
site for lawful sports and pastimes during the 20 year period from June 1981
until June 2001’.
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.
The evidence submitted by the applicant does suggest that this has been
the case for a number of those submitting questionnaires. No evidence has been
provided by the objector to indicate any measures that were taken during the
qualifying period to exclude or discourage users, nor that any permission was
at any time sought or given.
Accessing the site by breaking down fences could be considered access
by force. The fences around the site have very recently been repaired and in
some cases replaced, but neither the objector nor the applicant provides any
evidence describing the fencing of the site during the qualifying period or any
incidents of damage to them. It is therefore not possible to consider the
fencing of the site in this application, as no evidence is available to show
where and when these fences existed. In some of the questionnaires the
submitters say that they entered by a gate which was left open.
There is no evidence that any sign or other indicator was erected
during the qualifying period which might have shown that users of the land did
not do so as of right.
d) For Not Less Than Twenty Years
i) Applicant’s Submission
The applicant relies on use during the twenty year
period from 1981 to 2001 and continuing. Of the 41 questionnaires/letters
submitted in support of the application, all of them indicate use throughout
some or all of the qualifying period.
A further letter of evidence from Mr Hames regarding
the land usage as allotments between the years 1977 and 1981 also accompanies
the applicant’s submission – Appendix E.
This letter, whilst referring to a period of time outside the qualifying
period, is important as it defines the beginning of the qualifying period, and
also has an influence on the area subsequently excluded by the applicant.
ii) Objector’s Submission
The objector comments that ‘it is not clear from the
application what area of land is intended to be registered. Although the whole
of the 7.957 acre field is edged in green, it is quite clear from the statutory
declaration and accompanying documentation that a large part of this field was
occupied by allotments during the period claimed and could not, therefore, have
been used for lawful sports and pastimes’. The objector did not indicate which
parts of the field they considered to be subject to this usage.
The objector’s comment probably refers to the letter
from Mr Hames (Appendix E) which indicates that the use of most of the land for
allotments ceased by 1981, and the remaining 12 plots ‘shortly after’ although
this letter was not specific as to exactly when this occurred.
iii) Comments
The evidence suggests that the site was wholly or partly used as
allotments prior to 1981. The
qualifying period in this application is from June 1981 - June 2001.
No documentary evidence has been submitted on the part of the objector
to show the use of the land as allotments during the period 1977 – 1981 but
this use is accepted by the applicant.
In the light of the above comment from the objector, the applicant
provided an updated plan – Appendix D - marking the area he believes to be the
area covered by the allotments in 1981, with the intention of exclusion of this
area from the application. There is insufficient evidence to say when these 12
plots were actually abandoned, and they can be excluded from the application
even though it is possible that they were not actually used during the
qualifying period.
The Committee is empowered to accept the application either in whole or
in part, and it is able to consider a partial approval of the application if
the evidence supports this.
CONCLUSION
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 his case on all four parts of the stated
grounds. The evidence suggests that the use of the land was (1) by local
inhabitants, (2) for lawful pursuits and pastimes, and (3) as of right. On the
question of whether this usage (4) occurred for twenty years, the evidence is
not conclusive for the entire site.
However, the evidence does suggest that usage did occur on all the area
outside the 12 identified allotment plots for twenty years, throughout the
qualifying period.
RECOMMENDATION
20.
Option C. To accept the
application in part and to register the application land as a Town or Village
Green excluding the area shown on the map in Appendix D.
BACKGROUND PAPERS
Appendices A – F
APPENDICES
Please note
– Appendix A is attached to the report.
Copies of Appendices B – F are available on application to Committee
Services Tel 01983 823287 / 823282.
Contact Point: Matthew Chatfield, Senior Countryside
Officer 323892
M J A FISHER
Strategic Director of Environment
Services