Purpose: for decision
Committee: REGULATORY APPEALS COMMITTEE
Date: 19 DECEMBER 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 36 statements of use in the form of completed
questionnaires as summarised 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 attached as Appendix B.
The land, which lies to the west of Sylvan Avenue, East Cowes, Isle of
Wight, has an overall area of approximately 1.65 hectares (4.076 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 D. 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 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. Consent was given by the Council for Grange Road Primary School to use
part of the site as a nature study area.
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 – expired.
A previous and differing application for Village Green
status was received from the same applicant on a smaller part of the land and
brought before the Committee on 11 March 2003. In line with the officer’s
recommendation the application was rejected on the ground that the use could
not be shown to be as of right.
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
On 20 June 2003 the Countryside Section received an
incomplete application from Mrs Rackett and an amended application was received
on 4 July 2003.
On 23 July 2003 notification was sent to Property
Services, Legal Services, Land Charges, Rights of Way, Development Control and
Parks & Beaches.
10. Parish and Town Council
On 31 July 2003 notification was sent to East Cowes
Town Council.
11. Local Member
On 31 July
2003 notification was sent to Councillor Margaret Lloyd.
12.
THIRD PARTY
REPRESENTATIONS
The Committee should note that a large volume of correspondence has
been generated by this matter, and the entire file will be available for
inspection by members at the meeting. However, as the decision must rest upon
evidence alone, for this report, the items submitted which include or consist
of specific evidence are given more detailed analysis, and those submissions
which, by contrast, state a point of view or an aspiration are given less
prominence. This report extracts and analyses key points, and summarises the
remaining evidence. But it must be emphasised that the recommendation is given
having considered the entire body of evidence, and if Members need to consider
further evidence, this is available for their use.
a)
Objectors
One objection was received from the Isle of Wight
Council’s Property Services which is evaluated in paragraph 19 – Evaluation.
The memorandum outlining the substance of the objection is shown in Appendix E
as Item E1.
A letter dated 14 October 2003 giving evidence in
connection with the application was received from Mr Bob Hooper (this was not
submitted by the Objector and is not in itself an objection) and this is shown
in Appendix E as Item E2. A copy of this letter was forwarded to the Isle of
Wight Council’s Property Services on 21 October 2003.
The Objector made further representations on 22 October 2003 following
sight of Mr Hooper’s letter.
b) Supporters
Thirty-six questionnaires, some with accompanying
submissions, were submitted in support of the original application, which are
evaluated in paragraph 19 - Evaluation.
A copy of the objection received from the Isle of
Wight Council’s Property Services – memorandum dated 11 September 2003 and
accompanying supporting evidence, was sent to the applicant, with letter dated
17 September 2003, requesting the applicant consider the application and make
any comments on the objection.
Two letters were received in support of the
application and disputing the objection from the Isle of Wight Council’s
Property Services – although not containing any evidence to be considered.
A letter of 30 September was received from the
applicant confirming that she wished to proceed with the application. In this
letter the applicant also disputes the objection from the Isle of Wight
Council’s Property Services but again, did not contain any evidence to be
considered.
A memo dated 22 October 2003 in response was then
received from Property Services. A copy of this was forwarded to the applicant
on 5 November 2003.
A further letter of 12 November was sent to the
applicant and a memo of 13 November 2003 to Property Services, giving notice of
the deadline of 21 November 2003 for consideration and inclusion of evidence in
this report. No response was received from either party.
13. FINANCIAL IMPLICATIONS
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.
14.
LEGAL IMPLICATIONS
See
Appendix A.
IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998
15.
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
16.
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.
17.
OPTIONS
a) To accept the application and register the
land as a Town or Village Green.
b)
To accept the
application in part and register a part of the land as a Town or Village Green.
c)
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 (recommended).
d)
To appoint an
independent inspector and/or hold a non-statutory public enquiry to hear the
evidence and make a recommendation to the Committee.
EVALUATION
18.
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 thirty-six questionnaires submitted as evidence in
support of the application have been completed by residents of East Cowes
attached as Appendix C (summarised in table).
ii) Objector’s Submission
In
paragraph 10 of his objection the Objector says “The Council has been managing this land for many years and during that
time there has been damage, dumping and trespass, no doubt by local residents”.
This implies an acceptance that local persons have been using the site. No
other explicit reference is made to this aspect of the evidence in the objection.
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 picnicking, play,
walking, nature study, relaxation, birdwatching, squirrel watching, and walking
the dog.
ii) Objector’s Submission
The objector acknowledges in his objection in paragraph 8 “…all access has been trespass”. Then in
paragraph 10 he says “The Council has
been managing this land for many years and during that time there has been
damage, dumping and trespass, no doubt by local residents”. Both these
statements seem to acknowledge that persons have been using the site.
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 by the
applicant as being enjoyed on the land can be said to constitute lawful sports
and pastimes as that phrase is now understood. There is no suggestion in the
objector’s evidence that the lawful activities identified did not take place,
although clearly the objector is indicating that other, unlawful, activities
may also have taken place.
c) As of Right
i) Applicant’s Submission
Table 19(c.i): Summary of evidence
The information provided in the questionnaires suggests that the
inhabitants have carried on the various activities openly without anybody
trying to stop them. All 36 questionnaires submitted state that the submitters
were never prevented from using the land, and that they used the land without
having asked permission. In answer to the question “Have you ever seen notices or fences that might have been intended to
prohibit use of the land?” none answered yes, and of the six that did not
answer no, all stated or implied that whilst a notice or notices existed, they
did not prohibit use.
ii)
Objector’s Submission
The Objector has provided evidence covering the whole of the qualifying
period in the form of copy memoranda, letters, estimates and photographs,
showing the Council’s endeavours to keep the site secure through the erection
of and 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 the
submitters believe this has been the case, the evidence of the objector
includes some indications that the intentions of the landowner may have been
demonstrated to exclude allowing such public access. There are numerous
relevant documents, of which a sample are copied in Appendix E and itemised
here:
Item E2: letter from Mr Hooper to Matthew Chatfield,
dated 14 October 2003.
This letter explains how Mr Hooper, ‘fully
supported by the Isle of Wight County Council’, worked to improve the path
on the site in 1987.
Item E3: Agenda of Land Sub Committee, IWCC 17 March
1987.
This item shows the intention of the County
Council at that time to allow this arrangement, including the management of the
path undertaken by Mr Hooper, as a temporary arrangement and specifically “not
dedicated as a public open space in perpetuity.” The document also confirms
the intention of the IWCC to provide signs indicating this.
Item E4: Letter from Mr Michael Brinton to R P Hooper
Esq. undated; copy received by IWCC on 17 January 1986.
This letter, from a member of the public (who has more recently
submitted a questionnaire in support of the application), presumably addresses
Mr Hooper in his capacity as an East Cowes Town Councillor, and Mr Hooper
passed the letter on to the County Council as landowners. In it Mr Brinton asks
“…how much of the ratepayers’ money has
been spent on renewing or replacing fencing in the last five years on this
site.” He continues “I believe we all
give a small silent cheer every time we see the fence has been cut.” This
letter is evidence that on more than one occasion during the qualifying period,
fencing was erected by the Council to keep people out of the site, and that
people used force to enter onto the site through the fence. By contrast, in Mr
Brinton’s questionnaire which was submitted in support of this present
application, in answer to the question “Have
you ever seen notices or fences that might have been intended to prohibit use
of the land?” he responded ‘NO’.
Item E5: Memorandum from County Estates Officer to
County Surveyor, 14 March 1988
This memorandum instructs the County Surveyor to erect signs at Sylvan
Avenue and Oak Tree Way. These signs were to read, 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”. The wording in the memorandum and the location of the signs on the plan
attached to the memorandum is exactly consistent with the wording of the sign
now present at Sylvan Avenue, and it is reasonable to assume therefore that
this sign was erected within, say, six weeks of the sending of the memorandum,
and thus it was in place from May 1988 until the present day, which would
include the majority of the qualifying period.
Item E6: Agenda of Land Sub Committee, IWCC 18 March
1986.
This item details the problems managing the
site, and identifies that “costly attempts in the past to contain the site
within a fence have been repeatedly frustrated”. Unfortunately it is not
possible to say when these attempts occurred, and possibly these refer to
occasions prior to the beginning of the qualifying period (in 1982), but in the
light of item E4, which refers specifically to this happening in the period
1981-1986, it is possible that at least some of these attempts occurred within
the qualifying period.
Item E7: 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 E8: 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 E7.
See also Appendix D: 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 shown
in Appendix D are the same signs which were erected in late 1978 or early 1979,
and in 1988, there is no evidence of any other signs having been erected, nor
of any previous signs being removed or changed, and furthermore the wording is
consistent with the wording of the signs referred to in item E7 and E5.
It is reasonable to conclude that all of these signs are the original
signs referred to in the documents supplied, and that they have been
continuously in place since being erected.
Therefore, during all of the qualifying period, signs were in place
which indicated that the use of the site was not as of right. From May 1988
onwards the wording of the sign (“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”) left little room for doubt as to this, although it is
possible, though unlikely, that the earlier sign (which referred to ‘No Public Right of Way’) might have been
interpreted as not prohibiting some other form of access.
If there is evidence that the area has been wholly fenced off at any
time during the qualifying period, then such fencing must preclude use as of
right. Fencing may have been erected on the site to prevent access in the
period 1982-1986, but there is no specific detail of when and where this
occurred. Certainly there is evidence that this occurred prior to the qualifying
period, and item E4 suggests that this must have continued into the qualifying
period itself.
In answer to the question “Have
you ever seen notices or fences that might have been intended to prohibit use
of the land?” none of the 36 questionnaire submitters answered yes, and of
the six that did not answer no, all stated or implied that whilst a notice or
notices existed, they did not prohibit use. This suggests that although it can
be shown that the submitters must have passed, for a period of up to 14 years,
a notice saying that the landowner did not intend to dedicate the land for
public use, none of them considered that the notice might have been intended to
prohibit use of the land.
d) For Not Less Than Twenty Years
i) Applicant’s Submission
The applicant relies on use during the twenty year period from 1982 to
2002 and continuing. Of the questionnaires submitted in support of the
application, all 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 Appendix E) 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.
19. SUMMARY 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 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.
20.
RECOMMENDATION
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
22.
APPENDICES ATTACHED
Appendix A: Registration
of Town and Village Greens: background.
Appendix B: A plan of the
application site
Appendix C: Summary of
questionnaires and Statements of Evidence
Appendix D: Photographs of the application site (sent to
Committee Members, the applicant and objector only)
Appendix E: Copies of key items of evidence (sent to
Committee Members, the applicant and objector only)
23.
BACKGROUND PAPERS
A
copy of the application files containing the full evidence, original
questionnaires and other correspondence will be available at the meeting.
Contact Point : Matthew Chatfield, '823893
Head of Planning Services
|
|
Place Y for yes and N for no in the box below |
|
· Can the decision be taken under delegated powers by an officer: |
Yes |
|
· Has sufficient consultation taken place? |
Yes |
|
· Is the consultation set out and evaluated in the report? |
Yes |
|
· If the recommendation is not consistent with the outcome of consultation, are reasons given? |
N/A |
|
· Can an elected Member (or member of the public) with no previous knowledge of the report see sufficient background information (which can include reference to previous reports) to allow them to understand the issue? |
Yes |
|
· Does the report identify what strategic or policy aim is achieved or contributed to by the decision? |
N/A |
|
· Are all reasonable options identified and appraised? |
Yes |
|
· Is there additional risk management information which needs to be set out? |
No |
|
· Has specialist advice been taken for the following: |
|
|
· Financial? |
No |
|
· Legal? |
Yes |
|
· Other? |
No |
|
· Is the cost associated with the decision fully set out and the source of any funding identified? |
N/A |
|
· Have the following been considered and explained (where necessary) in the report: |
|
|
· Human Rights issues? |
Yes |
|
· Crime and Disorder issues? |
Yes |
|
· Is risk management properly addressed? |
N/A |
|
· Are all background papers listed and available? |
Yes |
|
· Are all appendices listed and attached? |
Yes |
|
· If the report is confidential or exempt is the reason for the confidentiality or exemption clearly identified? |
N/A |
|
· Are there clear recommendations with reasons? |
Yes |
|
· Are the report author and contact officer clearly identified? |
Yes |