Committee
: REGULATORY APPEALS COMMITTEE
Title
: APPLICATION TO REGISTER A VILLAGE GREEN AT LAND KNOWN
AS QUEENS BRICKYARD, POINT FIELD, WHIPPINGHAM, ISLE OF WIGHT.
REPORT OF THE HEAD OF PLANNING SERVICES
Committee
: REGULATORY APPEALS COMMITTEE
Title
: APPLICATION TO REGISTER A VILLAGE GREEN AT LAND KNOWN
AS QUEENS BRICKYARD, POINT FIELD, WHIPPINGHAM, ISLE OF WIGHT.
1. The Isle of Wight
Council as registration authority has received an application to register land
known as Queens Brickyard, Point Field, Whippingham, Isle of Wight, 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 Mr Dave Ellison of 1, Brickfield Cottages, East Cowes Road on
4 September 2004 and is attached at Appendix C. The application was supported
by questionnaires and statements from six individuals, including the applicant.
The application was verified and accepted on 16 September 2003.
The relevant
period for the purpose of the application is August 1982 to August 2002 (no
exact date was given).
LOCATION AND SITE CHARACTERISTICS
4.
The land the subject of the application is shown edged with a thick
black line on the plan attached as Appendix B.
The total area is approximately 4.06 hectares. The land consists of two
distinct areas: an open area, marked by the applicant as ‘Point Field’ (also
sometimes known as Pointfield), on the south-eastern part of the land; and an
area to the north-west of the site, marked by the applicant as ‘Queens
Brickyard’, which consists of a smaller open area surrounded by woodland.
RELEVANT HISTORY
5.
Factual
The land is
registered at HM Land Registry in the name of Selangor Limited.
6.
Committee
History
The land was the
subject of six planning applications prior to the twenty-year qualifying
period. It has subsequently been the subject of three planning applications,
the first received on 11 July 2003 for a trailer park and associated facilities
to be sited on the southern section of the land in question. This application
was refused on the grounds of failure to provide sufficient information to
allow for an assessment of the impact of the proposed development on the local
infrastructure.
The second was received
on 2 September 2003, also for a trailer park and associated facilities but to
be sited on the northern section of the land in question. This was undetermined
due to the lack of information provided and expired.
The third
planning application was received on 20 July 2004. This application is again,
for a trailer park and associated facilities on the northern section of the
land and has yet to be determined.
COUNCIL POLICY
18. 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
19.
Fire
It was considered
that no consultation was necessary.
20.
Police
It was considered
that no consultation was necessary.
21.
Relevant Council
Departments
On 22 September
2003 Legal Services was notified of receipt of the application in order to
effect Local Land Charges searches on the site.
On 22 September
2003 notification was sent to: Property Services, Rights of Way, Local Land Charges,
and Development Control.
22.
Parish and
Town Council
The application
land does not fall within the boundaries of any Parish or Town Council.
23.
Local Member
On 8 October 2003
notification of the application was sent to Councillor Charles Hancock.
THIRD PARTY REPRESENTATIONS
24. Objectors
On 27 October 2003 a letter was received from Red
Funnel Group Ltd indicating that they had an interest in the land and stating
their intention to object to the application ‘in due course’.
·
On 25 November 2003 a letter of
objection was received from Lamport Bassitt, Solicitors, concerning a part of
the land. Lamport Bassit did not indicate their interest in the land nor
whether they were acting for a third party who may have had an interest in the
land. They later indicated that they were in this matter representing the Red
Funnel Group.
·
On 26 November 2003 an letter
of objection was received from Moore & Blatch, Solicitors, acting on behalf
of Wightlink Limited.
·
On 27 November 2003 an objection
was received from Roach Pittis solicitors, acting for the landowners Selengor
Limited (Appendix D).
These three outstanding objections were forwarded to
the Applicant for comment on 21 January 2004. His response was received on 25
March 2004 and also included four further questionnaires. This was forwarded to
the objectors for comment on 1 April 2004.
On 7 May 2004 a response was received from Roach
Pittis enclosing further information. This, along with a further short letter
from Roach Pittis of 11 May 2004, was also forwarded to the applicant for
comment.
Further brief comments were received from the
Applicant on 24 May 2004 and 1 October 2004. These have not been sent to the
objectors for comment.
FINANCIAL IMPLICATIONS
25. 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. A paper summarizing 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
16. It is not anticipated that
the options placed before the Committee will have any implications under the
Crime & Disorder 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;
(c)
the Council
remains the decision maker even though an Inspector was 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.
18. 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.
c) Appoint an independent inspector and/or hold a public enquiry to hear the evidence.
d) Reject the application
19. 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.
20. SHOULD THE COUNCIL APPOINT AN INSPECTOR?
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.
21. CONSIDERING THE EVIDENCE
There are a number of tests which the applicant is
bound to satisfy before any application can be accepted. The applicant makes
his claim under s22(1) of the Commons Registration Act 1965, as amended by s98
of the Countryside and Rights of Way Act 2000.
He 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, ‘Point Field’ and ‘Queens Brickyard’. There are important
differences in the use of these two areas during the qualifying period, and
therefore they will be considered separately where necessary.
22. Pointfield & Queens Brickyard: use of the land by
a significant number of inhabitants of any locality, or of any neighbourhood within
a locality
The Applicant’s
evidence: all of the questionnaire
submitters show that they used Queens Brickyard. Seven out of the ten
questionnaire submitters show marked on their plan that they used Pointfield or
part of Pointfield for part or all of the relevant period. Most indicate use of
the entrance in the hedge between Pointfield and Binfield but some also show
use of the whole field of Pointfield as well. The applicant claims that the
users of the site are drawn from “the
neighbourhood within the electoral district of Whippingham”, and also
refers to ”the neighbourhood of East
Cowes Road within the locality of Whippingham” (both from his evidence
submitted 25 March 2004). Although no plan has been separately produced, it is
clear from the applicant’s statements that he is claiming that East Cowes Road
is a neighbourhood within a locality, within the meaning of the amended 1965
Act. The applicant further claims that a significant number of the inhabitants
of this neighbourhood have been using the land in the way he claims.
The Objectors Evidence: the Objector also assumes that the applicant is
claiming that East Cowes Road is a neighbourhood within a locality, within the
meaning of the amended 1965 Act (in the objection of 27 November 2003). The objector
considers the questionnaire submitters in some detail, but in short submits
that that the number of inhabitants of the neighbourhood who used the site at
any one time is not significant.
Evaluation: the neighbourhood of East Cowes Road consists of
twenty four houses, some distance from other properties. The objector has not
demonstrated any reason why this area should not be considered to be a
neighbourhood within a locality, as claimed by the applicant. 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 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.”
This case is indeed one where the neighbourhood has ‘a
very limited population’. Although the exact number of evidence submitters who
actually count as inhabitants of the neighbourhood at any one time is certainly
open to debate, there is no doubt that several of them do so throughout the
relevant period. The applicant provides a map entitled ‘Appendix 1, Osborne
Electoral Division’ in his submission received 25 March 2004, which shows nine
of the questionnaire submitters living in the area which he calls East Cowes
Road for some or all of the qualifying period. Given the small size of the
neighbourhood this seems sufficient to be called a significant number.
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.
23. Pointfield & Queens Brickyard: use of the land for
lawful sports and pastimes
The Applicant’s
evidence: the Applicant described a
number of activities which were undertaken on the site, including dog walking,
bird watching, fruit picking, ‘with children’, photography, walking, catching
bugs, metal detecting and playing. All of these can be described as lawful
sports and pastimes (assuming that the metal detectorist did not disturb the
soil or take anything away).
The Objectors evidence: the Objector does not suggest that such activities
are unlawful in themselves, although he suggests that the user was ‘of an unspecific nature’, more akin to
a ‘right to wander’. He also adds
that in Pointfield specifically the user was restricted to the hedgerows and
headlands. It is arguable that some of those plans submitted show use of
Pointfield simply as a means of passing from Binfield to Queens Brickyard
(which would not be considered a sport or pastime), but the level of detail
shown is not enough to make this clear. The objector does not specifically
address the evidence of the seven questionnaire submitters whose plans showed
that they had used parts of Pointfield, or specifically Mr Goodredge who
claimed that he had used Pointfield for metal detecting.
Evaluation: the
activities claimed are lawful sports and pastimes, and the objector has not
cast sufficient doubt upon the applicants evidence to presume otherwise.
The applicant has proven that, on the balance of
probabilities, use of the land was for lawful sports and pastimes
24. Pointfield: use of the land as of right;
The use of the area known as Point Field or Pointfield
is one of the major points of dispute in the evidence. The objector claims that the area was used
for arable crops, and that this is inconsistent with the user claimed by the applicant.
The Applicant’s
Evidence: the applicant states in his
letter of 21st May 2004:
“None of the long term
residents of East Cowes Road, or others from the Whippingham area, recall crops
in Pointfield, yet clearly remember field beans and linseed being grown in
Binfield”
The applicant suggests, therefore, that as the field
was not used for arable crops, the user he is claiming would be possible.
Although he does not say so, he is suggesting thereby that if the field was
indeed used for arable crops, the user he is claiming would be less credible.
The Objector’s Evidence: The objector claims that “all of the land, with the exception of the woodland area, has been
farmed until the end of harvest 1998”.
He provided Field Data printouts for 1994-1998 inclusive, which showed that
the land was indeed described as under crop. He also provided a letter from the
former agricultural agent for the site, Mr Aird-Hughes FRICS.FAAV(Rtd). This
letter stated “There is no doubt that the
land was farmed with either crops or stock for the whole period in which I was
involved with its management from the mid 1970s to the end of 1993.” This corresponds with the evidence of
the farmer, Mr RBD Symes, who said that he had cultivated the entire area ‘the two fields which comprised the
holding’, and grew winter wheat in a number of years including 1995, 1997
and 1998.
On 6 May 2004 the objector provided some more detailed
records of sharecropping on the land.. The records appear to relate to the two
fields of Pointfield and Binfield combined. They show a number of reports of
crops being taken from the fields, as follows:
|
Year |
Crop |
Area (ha) |
Sold (tonnes) |
|
1992 |
Linseed |
8.00 |
4 |
|
1991 |
Wheat |
? |
60.2 |
|
1990 |
Beans |
? |
30.2 |
|
1988 |
Corn |
? |
? |
Evaluation: The submission of the objector is strong evidence
that wheat (which is also referred to as corn) was grown on both fields, as
well as beans and most recently linseed, within the qualifying period. The weak
point in the objector’s evidence is that he has no separate records of both
fields. However, it seems highly unlikely that the 1991 record applies solely
to Binfield, an area of only 6.5ha. The evidence of both the objector and the
applicant both suggest that the fields are not of the best agricultural quality
and both remark on some difficulties in cultivating them. The average yield for
wheat in England in the years 1992-1996 was 7.5 tonnes/ha (source: DEFRA). If
the Binfield field was responsible for producing 60.2 tonnes of wheat in 1991
it would have achieved a remarkable 9.26 tonnes/ha yield. If the figure for
1991 actually includes both Binfield (6.5ha) and Pointfield (2.0ha) then the
yield drops to a much more credible 7.08 tonnes/ha.
If it is accepted that wheat was cultivated in the
field known as Pointfield in 1991 or any of the subsequent years identified by
Mr Symes, it is unlikely that the field was being used, as of right, as
described by the applicant at that time.
The applicant has not proven that, on the balance of probabilities,
use of the land known as Pointfield was as of right.
25. Queens Brickyard: use of the land as of right;
The Applicant’s
evidence: there is more evidence from
the applicant about use of the area known as Queens Brickyard than for
Pointfield. All the questionnaires show use of the Queens Brickyard site. Some
of the pastimes described by those giving evidence seem likely to have been
more easily undertaken in the woodland area than in the agricultural fields;
for example, bird watching or bug-hunting. The routes marked on the plans which
accompanied the questionnaires almost all show more intensive use of the Queens
Brickyard area than the Pointfield area.
The applicant dismissed the use of the land as a
pipe-store in 1992, saying that it was possible to simply bypass the dumped
pipes. He does not mention the use of the land as a contractors compound in
2000 and 2001, nor a landfill site up to 1993 except to say that ’it was possible to use the wooded area
despite tipping activities by IW Council’ (in submission received 25 March
2004). He makes the general statement that ’The
commercial use of Queens brickyard was not undertaken on all of the area, all
of the time’.
He offers no evidence to suggest that the licensed
areas of the site were used by third parties as of right during the period when
it was tipped or when it was licensed to Transco in 2000-2001.
The Objectors Evidence: the agricultural evidence submitted is not relevant
to this part of the site. However the objector has demonstrated that
identifiable parts of the land were licensed for tipping on 22 November 1978,
(see plan at Appendix E2), for use as a pipe storage area in 1992 (see plan at
Appendix E3), and as a contractors’ compound in July 2000-January 2001 (see
plan at Appendix E4).
The objector has submitted documents which show that
central area of the Brickyards site (presumably the old brickpits) was used as
a landfill site by the Isle of Wight County Council from 1978 onwards, ending probably
in 1989, and not being fully restored until at the earliest 1993 (see Appendix
E2). The existing soils and vegetation on that part of the site are consistent
with this assertion.
Other evidence: during the preparation of this report new evidence
came to light within the Countryside Section of the Council. The Assistant
Ecology Officer was asked to visit the TRANSCO compound in connection with the
pipeworks elsewhere, on 4 September 2000, and she did so in the company of the
Ecology Officer. She did not visit any other part of the site. She submitted a
memorandum (Appendix F) which describes what she recalls of the TRANSCO site at
that time. She said
“We were met at the site office by the project
manager and the environmental scientist supervising the project and escorted
round the site by them. Site safety notices were posted and we had to wear
safety clothing hard hats, high visibility jackets and steel toe capped boots.
There was Heris fencing at the entrance which would have been closed over the
site entrance when work ceased for the day”.
Whilst
the Assistant Ecology Officer cannot confirm whether or not the compound was
secured when not in use, it seems reasonable to conclude from her description of
the visit that the site was not accessible to casual users, and that, at least
at the time she visited, nobody could have entered the site except with the
consent of the contractors. As it is unlikely that those engaged in lawful
sports and pastimes would have brought with them protective clothing, it may be
concluded that the site was not accessible for such use during some or all of
the time during which it was under licence to TRANSCO.
Evaluation: it is not unreasonable to assume that the use of the land
as a pipe-store in 1992 did not significantly interrupt the use of the land as
claimed by the applicant. Storage of pipes was temporary and the applicant has
indicated that it did not in itself prevent use of the land. The objector has
not provided evidence of how the pipes were stored, nor if any security
measures were taken. It is possible that no effective steps were taken to
exclude the public, as the requirements of health and safety were less
strenuously applied in those days.
The plan submitted by the objector showing the
licensed tipping area is highly significant.
This means that during the qualifying period an identifiable area of the
land was in active use for tipping and restoration. Even if it might have been
possible to enter that part of the land during this period, it seems inevitable
that the legitimate use of the site at that time would have interfered with the
enjoyment of lawful sports and pastimes for significant periods of time. The
applicant does not provide evidence to suggest that anyone regularly used the
tip area during the time when it was being used as a landfill site; indeed, his
only reference to it - a suggestion that the woodland area was used instead -
implies that the tipped area (which obviously was not woodland) was not used at
that time. Most of the questionnaire submitters refer to how they enjoyed the
natural beauty of the site, and so it is not unreasonable to assume that during
that period they would have chosen to undertake any lawful sports and pastimes
(as opposed to simply passing through en
route to another location) in the immediately adjacent natural area of the
woodland, rather than on an active tip.
The use of the land as a landfill site, and as a
contractors’ compound, are clear evidence of an identifiable area of the Queens
Brickyard site being used for a purpose which is not compatible with the type
of user which is being claimed. Both
these types of land usage must necessitate some exclusion of unauthorised persons.
The applicant did not produce sufficient evidence to counter the claims of the
objector that these subdivisions of the site were so used, and indeed agreed
that some of the area was used ‘commercially’ for some of the time.
Unlike Pointfield, it is possible that the degree of
use suggested by the applicant was continuing on some of the land at Queens
Brickyard without being observed by the landowner or their agents. The objector
has not demonstrated that signs, effective fences or gates were erected to
prevent access to the site. Although a gate is in existence, and may have been
locked for some or all of the relevant period, as there is reference to a key
being held by Mrs Reddy, there is no doubt that the access claimed by the
applicant could have occurred through other, ungated entrances. The gate or
gates would provide some deterrent to vehicle access to the site but there is
no evidence that any part of the site was ever effectively secured against
pedestrian access except the TRANSCO compound. Whilst there is evidence from Mr
Symes and Dr Reddy showing that on occasion trespassers were clearly challenged
- perhaps unsurprisingly, two of these occasions were when the persons in
question were actually living on the land – none of these trespassers were
inhabitants of the neighbourhood, and the evidence does not give the impression
of a site where trespass has been clearly or consistently forbidden.
The area identified in Appendix E2 does not quite
correspond with the cleared site on the ground at present. This is to be
expected as the restoration process no doubt took in some of the surrounding
land for a short while. However the licensed area shown in E2 is an accurate
representation of the area on which the tipping legitimately took place, and
therefore this area is the most sensible data to use when determining the area
which was affected by the tipping operations.
The land at Queens Brickyard therefore can be divided
into two categories for the purpose of this test (See plan at Appendix E5):
·
That land which was subject to a
licence to be used by TRANSCO as a compound from 2000-2001, plus that land
which was licensed for use by the Isle of Wight County Council as a landfill
site ending in approximately 1993 (‘the Licensed Land’)
·
All that other land within the
area known as Queens Brickyard which was not subject to those licences,
including those parts of the area licensed in 1992 to British Gas as a pipe
store which are not a part of the Licensed Land (‘the Unlicensed Land’)
The applicant has proven that, on the balance of probabilities,
use of the Unlicensed Land at Queens Brickyard was as of right.
The applicant has not proven that, on the balance of
probabilities, use of the Licensed Land at Queens Brickyard was as of right.
26. The Unlicensed Land: use of the 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. Pointfield and the Licensed Land) cannot,
therefore be considered to have been used for twenty 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 twenty years, and if they are so applied
it is reasonable to assume that the user 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 twenty years
therefore remains to be tested on the Unlicensed Land only.
The Applicants
Evidence: All the questionnaires show use of the Queens
Brickyard site. Some of the pastimes described by those giving evidence seem
likely to have been more easily undertaken in the woodland area than in the
agricultural fields; for example, bird watching or bug-hunting. The routes
marked on the plans which accompanied the questionnaires almost all show more
intensive use of the Queens Brickyard area than the Pointfield area.
Submissions which clearly show use of the Unlicensed Land include that of Mr
Saunders; WAG Harris; Mr D Peters; Mr Goodredge; A Osborne; and Mr G Peters.
All of these plans show that their use of the Queens Brickyard site was almost
entirely limited to the Unlicensed Land. Other plans do show some use of the
central cleared area, but all the plans submitted show some use of the
Unlicensed Land. Of those mentioned, three show continuous use throughout the
relevant period, and all the other questionnaire submitters show use during a
part of the relevant period.
The Objectors Evidence: the objector does not provide any direct evidence to
rebut the claims of the applicant in respect of the Unlicensed Land. However he
does clearly say (in the objection dated 27 November 2003) in respect of this
area of land that neither Dr Reddy (the landowner), the Symes brothers, nor Mr
Aird-Hughes ever saw any of the activities claimed by the applicant.
Evaluation: the applicant shows a pattern of use which is apparently
uninterrupted on the Unlicensed Land. The objector has not been able to cast
sufficient doubt upon this evidence. His main point is that nobody saw the use.
However, elsewhere in the objection he also says that “the whole of the non-wooded area was cultivated”, and again “all of the land, with the exception of the
woodland area, has been farmed…” Therefore it might not be surprising if
the Symes brothers and Mr Aird-Hughes had not seen anybody on the Unlicensed
Land, as the area was not a part of their agricultural interest and they would
have had no particular reason to go there or overlook it.
The applicant has proven that, on the balance of
probabilities, use of the Unlicensed Land was for not less than twenty years.
|
RECOMMENDATION |
|
27. To partially reject the application and not to register Pointfield and the part of Queens Brickyard shown as the Licensed Land in Appendix E5 as a Town or Village Green AND To partially accept the application and register the part of Queens Brickyard shown as the Unlicensed Land in Appendix E5. |
28. APPENDICES ATTACHED
·
A: Legal paper
·
B: Plan of the application site
·
C: The original Application
·
D: The main Objection from Selangor Limited
·
E: Revised plans
o
E1 - plan with no overlays
o
E2 - plan showing licensed
landfill area
o
E3 - plan showing British Gas
pipe storage yard 1992
o
E4 - plan showing TRANSCO
compound 2000
o
E5 - composite plan showing all
licensed areas and identifying area of Queens Brickyard not covered by licences
·
F: Memorandum from Anne Marston
PLEASE NOTE – Appendices A and B are attached to the report.
Copies of Appendices C – F are available on application to Committee Services 01983
823287.
29. BACKGROUND PAPERS
Background papers can be inspected at the Council’s
Seaclose offices and will be available at the meeting.
·
All original submissions by the
applicant and objectors
Contact Point: Matthew Chatfield, Countryside Manager ' 823893
ANDREW ASHCROFT
Head of
Planning Services