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 Commons Registration New Land Regulations 1969.

2. The application was advertised and the consultation procedure required by the 1965 Act has now been completed. Evidence was submitted in support of the application. One objection was received from the landowner. The objector submitted further evidence in the form of nine statements, some plans and a letter making representations and submissions. There is conflict between much of the evidence which has been submitted. The Committee is asked to decide how this matter should now be resolved.

DETAILS OF THE APPLICATION/ORDER

3. 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. These are not reproduced as part of this report, but are available to Members of the Committee and to members of the public as background papers.

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 A. 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 officers of the Council and therefore a comprehensive description cannot be given. The north eastern 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. It appears, from a worn pathway, that a gap in the perimeter hedging has been used as a further access point in the south eastern 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 apparently crossed by a number of tracks.

RELEVANT HISTORY

5. .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 that the land is owned by GKN Aerospace Services Ltd.

6. 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.

A paper concerning this site was submitted to the Committee on 11 April 2003, but the application was deferred. The Chairman referred to additional information which had been received, by the Council, since the report had been circulated with the agenda, and proposed that consideration of the item be deferred without any discussion thereon. This present paper is based upon that original document, with substantial amendments.

COUNCIL POLICY

7. As registration authority, the Council has a duty to fairly dispose of the application on its merits and furtherance of Council policy objectives will be irrelevant.

FORMAL CONSULTATION

8. Fire

It was considered that no consultation was necessary.

9. Police

It was considered that no consultation was necessary.

10. 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.

11. Parish and Town Council

The application land does not fall within the boundaries of any Parish or Town Council.

12. Local Member

On 12 November 2002 notification was sent to Councillor Charles Hancock.

THIRD PARTY REPRESENTATIONS

13. Note that full copies of this evidence are not attached to this report for reasons discussed in paragraph 22, Evaluation.

14. Objectors

One objection was received on 19 December 2002 from Wragge & Co Solicitors on behalf of their client, GKN Aerospace Services Ltd. 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 at that time, but subsequently, Wragge and Co. have obtained a considerable amount of further evidence which they submitted partially on 3 June 2003, and fully on 10 June 2003. This comprises nine statements, including some plans and other documents, and a letter.

15. Supporters

41 statements of use, in total, in the form of letters and completed questionnaires were submitted in support of the original application.

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.

On 30 January 2003, the applicant made a further submission of supporting letters and questionnaires from local residents.

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.

A further letter and two more questionnaires (numbered 42 and 43) were submitted by the applicant on 3 June 2003.

Having seen the evidence of the objector, the applicant wrote two further letters which included fresh evidence on 12 and 16 June 2003.

OPEN SPACES SOCIETY

16. 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.

FINANCIAL IMPLICATIONS

17. The cost of commissioning an independent inspector’s report could amount to at least £5,000.

The cost of holding a non-statutory enquiry is unlikely to amount to over £20,000. A significant amount of this cost would be offset by savings in officer time.

There is no specific allocation within any budget for either of these eventualities. The funding would have to come from existing budgets.

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

18. At the meeting of this Committee on 27 May 2003, Members considered a detailed report setting out an analysis of the law relating to Town or Village Greens. A sets out an analysis of the law relating to the registration of Town or Village Greens. The power to appoint an inspector derives from the 1965 Act and 1969 Regulations, in conjunction with S111 Local Government Act 1972. 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

19. 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

20. 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 if an inspector is 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 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.

In determining the application, in due course, 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. The decision to appoint an inspector, or not, does not raise any issues in relation to Article 1.

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

21. The committee can either:

(1) Decide to determine the matter itself and

(a) Adjourn the application to its next meeting in order to consider issuing directions as to evidential and procedural matters, and

(b) Set aside three days later in the year to determine the application.

(2) Appoint an independent Inspector to consider the evidence at a non-statutory public inquiry and make a recommendation to the committee.

EVALUATION

22. This report does not evaluate the evidence submitted in full. Nor does it consider which items of evidence are admissible. The considerable volume of evidence which has been submitted by both applicant and objector includes a number of conflicting items of evidence. Not all of these are presented here as a full analysis has not been undertaken. Examples of this are as follows:

23. EXAMPLE 1:

Of the 40 initial questionnaires submitted, all 40 state that the submitter had used the land without seeking permission, and without being stopped. Of these at least 30 state that they have done so on a weekly basis or more frequently than this. By contrast, statements provided by the objector (numbers 1 and 2) state that the site was used to graze sheep for a period of three weeks during 1999, throughout which time the entire site was fenced. One statement (number 2) says ‘It would have been impossible for the public to use the Site when Mr Brownrigg grazed it.”

24. EXAMPLE 2:

In one witness statement provided by the applicant (number 8) the submitter asserts that they entered the land ‘almost daily’ through ‘the open gate and gaps in hedgerows’ since 1984. Other witness statements make similar assertions. However in a statement provided by the objector (number 4), it is stated ‘Between 1980 and 1991 certainly, the only way to enter the site would have been by force if one did not have authority to gain a key.’

25. EXAMPLE 3:

In a questionnaire and supporting letter provided by the applicant (number 9) the writer states that she has used the land since 1987 and has ‘never been stopped or found my way barred.’ She also refers to enjoyment of ‘the peace and quiet’. However, in a statement provided by the objector (number 5) the writer described a process associated with testing hovercraft skirt material known as ‘flagellation’ which he asserts was carried out on the site. This process was very noisy and dangerous, and, he says, ‘No person with any sense would go within 60 feet of the exposure area’. He says that ‘In 1987 flagellation was happening quite regularly, but declined after that. In fact flagellation still goes on from time to time now.’

The applicant has made further comments and provided further evidence about some of these matters and others. The objector has indicated that they may make further comments and/or provide further evidence.

CONCLUSION

26. It is suggested that an inspector be appointed for the following reasons:

(1) The conflicts of evidence are likely to require the invitation of statement makers to answer questions on their evidence.

(2) An inspector is better able to issue directions and resolve disputes as to process and admissibility of evidence.

(3) A determination hearing is otherwise likely to last several days.

Members of the Committee will retain the duty to determine the issue in due course. They can do so with greater confidence in the light of an inspector’s report, following a thorough testing of evidence.

An alternative course of action would be to continue the research of the Countryside Section into this matter, which would involve further submissions from both parties. This could be a very lengthy process and might still result in a recommendation that an enquiry is necessary. This option does not appear to be the best one to produce a fair result within a reasonable time.

Accordingly, the recommendation is to refer this matter to a non-statutory enquiry. This enquiry would report back to the Committee by which the final decision must still be taken. The Committee is not bound to follow the recommendation of the enquiry, but normally it would be expected to do so unless it had a valid reason to disregard it.

RECOMMENDATIONS

27. Option (2): Appoint an independent Inspector to consider the evidence at a non-statutory public inquiry and make a recommendation to the committee.

APPENDICES ATTACHED

28. Appendix A: Plan of area.

BACKGROUND PAPERS

! Papers submitted by the applicant.

! Papers submitted by the objector.

! Report to Regulatory Appeals Committee dated 29 May 2003.

Contact Point : Matthew Chatfield 823893

Andrew Ashcroft