Committee:

RELEVANT HISTORY

4. Factual

The land is currently in the ownership of the Isle of Wight Council and was originally traversed by Station Road, Wellow Road and the junction of the two. The highway was realigned in 1974 – see Appendix D, item D2.

5. Committee History

The application land as a whole, subsequent to the realignment of the highway has been the subject of one planning application in 2001 for the construction of a village sign for which planning consent was granted.

Prior to the highways works in 1974 sections of the application land were subject to planning applications – four in total. These took place prior to the nominated twenty-year qualifying period for Village Green status.

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 29 September 2003 the Countryside Section received an application from Shalfleet Parish Council.

On 6 October 2003 notification was sent to Property Services, Legal Services, Land Charges, Rights of Way, Development Control, Highways and Parks & Beaches.

10. Parish and Town Council

Shalfleet Parish Council, as the applicants did not require notification.

11. Local Member

On 11 November 2003 notification was sent to Councillor Terry Butchers.

12. THIRD PARTY REPRESENTATIONS

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 are shown in Appendix D as item D1. The objector did not comment on the submission of the applicant but made other relevant points.

b) Supporters

Nine questionnaires 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 – memorandums dated 21 November 2003, 4 March 2004 with supporting map and memorandum of 30 March 2004 were forwarded to the applicant, with our copy memorandums of 2 March and 24 March to Property Services. Our letter of 16 April 2004 accompanied the above documents requesting the applicant consider the application and make any comments on the objection.

An email of 7 May 2004 was received from the applicant confirming that the Parish Council wished to proceed with the application. In this email the applicant disputes the objection from the Isle of Wight Council’s Property Services but no supporting evidence was forwarded.

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.

15. IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

It is not anticipated that the options placed before the Committee will have any implications under the Crime & Disorder Act 1998.

16. IMPLICATIONS UNDER THE HUMAN RIGHTS ACT 1998

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 (recommended).

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.

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.

18. EVALUATION OF EVIDENCE

The 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.

The applicant has submitted relatively few questionnaires, and not all of them address all four matters to be proven.

For the application to succeed, the applicant must prove their case on all four parts of the stated ground. The four parts are considered in turn.

a) Use of the land by a significant number of inhabitants of any locality, or of any neighbourhood within a locality

i) Applicant’s Submission

The nine questionnaires submitted as evidence in support of the application have been completed by residents of Ningwood attached as Appendix C (summarised in table). The applicant’s plan shows 14 properties in the Ningwood Green area.

ii) Objector’s Submission

The objector does not dispute the evidence of the applicant that user of the site was by inhabitants of the locality or neighbourhood.

iii) Comments

Although the applicant does not identify the locality or neighbourhood where inhabitants are claimed to come from, it is clear that the applicant intends to prove that user was from the neighbourhood of Ningwood Green, within the locality of Ningwood. The questionnaires submitted provide some insight into what is meant by ‘locality’ in the application, with all but one of the submitters asserting that their locality includes one or more of a school, place of worship or shops. These three items cannot be found in the neighbourhood of Ningwood Green, and therefore it seems inevitable that the ‘locality’ must mean the locality known as Ningwood. Seven of the nine submitters have given their address including the post town ‘Ningwood’. None of them have put any other locality. The number of submitters is not sufficient to prove that a significant number of the inhabitants of the locality of Ningwood used the land. However, they do provide sufficient evidence to prove that, on the balance of probabilities, a significant number of the inhabitants of the neighbourhood immediately surrounding Ningwood Green used the land. This area does appear to be a separate neighbourhood, not only from the arrangement of the properties but also because of the associations with the former railway which have strongly influenced the buildings and their orientation in that neighbourhood only.

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.

b) Use of the land for 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, relaxation, birdwatching, horse riding, carol singing, grazing tethered ponies and walking the dog.

ii) Objector’s Submission

The objector does not dispute the evidence of the applicant that user of the site was by inhabitants of the locality or neighbourhood.

iii) Comments

‘Lawful Sports and Pastimes’ is an expression not just restricted to organised games and activities. The 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.

The applicant has proven that, on the balance of probabilities, use of the land was for lawful sports and pastimes

c) Use of the land 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. No evidence has been presented by the applicant suggesting any other position.

ii) Objector’s Submission

The objector does not dispute the evidence of the applicant that user of the site was as of right.

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 applicant shows evidence that this was the case, and there is no contrary evidence from the objector, who is also the landowner.

The applicant has proven that, on the balance of probabilities, use of the land was as of right.

d) Use of the land for not less than twenty years

i) Applicant’s Submission

The applicant does not specify a 20 year period but indicates “The land evolved into a green following the closure of the railway and realignment of the highway c.1973”. This suggests a claimed use from 1973-2003. As the period of user is not in question in this application there has been no attempt to clarify this situation, but given the lack of certainty over the starting date the application it can safely be assumed that a qualifying period of 11.6.1983-11.6.2003 is claimed. 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 does not dispute the assertion that people have used the land for twenty years.

iii) Comments

This is the weakest strand of the applicant’s evidence, given that only three of the submitters used the land throughout the qualifying period. However, given the small size of the locality established, and the lack of any objection or contrary evidence, it is not unreasonable to accept these three submissions as sufficient to prove the point.

The applicant has proven that, on the balance of probabilities, use of the Unlicensed Land was for not less than twenty years.

19. EVALUATION OF OBJECTION

The objector presented no evidence. He did not comment on the submission of the applicant nor the evidence presented but made two other relevant points.

i) Highway Land

On 21 November 2003 the objector wrote “The land was part of the old road before it was realigned, and was not officially “stopped up”. Therefore it is still part of the public highway and as far as I am aware this means that it cannot be subject to a Commons Registration Application.”

The Registration Authority sought legal advice on this assertion. On 14 February 2005 the Authority was advised that the Commons Registration Act 1965 defines common land and excludes from the definition ‘any land forming part of a highway’. However, common land is not synonymous with land which is a Town or Village Green. The Act makes no such exclusion of highway land for Town or Village Greens. In fact, highway land is not mentioned in the definition at all. The Registration Authority believes that there is no legal reason why a highway could not be registered as a village green and therefore this part of the objection provides no impediment to the registration in itself.

ii) Verges/Highway widening

On 30 March 2004 the objector asked to ‘exclude the two metre strip along the boundaries of the roads at the T junction’. The reason given was ‘in order not to prejudice the Council’s future use of the land’. In a telephone conversation the objector clarified this, and suggested that this might be required for future road widening schemes.

This is a legitimate purpose for which the landowner might wish to use the land; furthermore, it might even appear to be a desirable purpose. However, as in the case above, there is no legal reason why possible future highway purposes might prevent registration of land as a Town or Village Green.

20. 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 their 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, (3) as of right, and (4) occurred for twenty years.

Although the evidence is not comprehensive, it does provide a consistent set of facts to support the application. Furthermore, the objector has not questioned the evidence nor offered any contrary evidence. No other person has objected to the application. It is reasonable to conclude that on the balance of probabilities the applicant has proven their case.

20. RECOMMENDATION

To accept the application

21. APPENDICES ATTACHED

Appendix A: Registration of Town and Village Greens: background.

Appendix B: A plan of the application site

Appendix C: Summary of questionnaires

Appendix D: Copies of key items of evidence

22. 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, Countryside Manager ' 823893 email [email protected]

ANDREW ASHCROFT

Head of Planning Services

REPORT OF THE HEAD OF PLANNING SERVICES