PAPER B1
Purpose
: for Decision
Committee : REGULATORY
APPEALS COMMITTEE
Date : 29
MAY 2003
Title : APPLICATION
FOR REGISTRATION OF NEW TOWN OR VILLAGE GREEN – FORMER PUTTING GREEN AND
ADJOINING LAND AT GURNARD
REPORT OF THE CHIEF EXECUTIVE OFFICER AND STRATEGIC DIRECTOR OF
CORPORATE SERVICES
1.
The
Council, as registration authority, has received an application to register the
former putting green and adjoining land at Gurnard as a town or village green
under Section 13 of the Commons Registration Act 1965 and
regulation 3 of the Commons Registration (New Land) Regulations 1969. The 1969 Regulations came into force on 3 January
1970 and regulation 3 enables the making of an application where, in accordance
with Section 22 of the 1965 Act, after 2 January 1970 any land becomes
common land or a town or village green.
The application is brought before the Committee for decision.
2.
The application, which relates to the former putting green and adjoining
land is the first of three village green applications made by Mrs Elizabeth
Campbell of Wardwicke Cottage, Baring Road, Cowes for the registration of
disparate areas of land at Gurnard.
3.
It may be helpful for Members to be aware of the events that have
prompted the Applicant to seek to register this land as village green.
4.
The Applicant first approached the Council in 1999 in connection with
the proposal by Southern Water to construct a pumping station at Gurnard as
part of the Seaclean Wight Scheme. It was her view that the pumping station
would encroach on land already registered as village green unit VG.14 under the
original 1965 exercise. The Council officers, after careful examination of the
Village Green Register Map, concluded that there would be no encroachment. It
is accepted that the scale of the Map
(1:10,000) is not suitable for determining boundary disputes but the
Council has to be guided by Section 10 of the 1965 Act. This provides that any question as to the
extent of a registered village green must be referred to the Register Map as
conclusive evidence of what land is registered. However the Applicant,
frustrated at the small scale of the Register Map, has never been entirely
convinced by the Councils interpretation of the boundaries.
5.
The Applicant has been candid in acknowledging that in submitting her
application she is seeking to ensure that the village green boundaries are
properly identified and documented with appropriate scale plans. The land the subject of this application is
already held by the Council as open space (see paragraph 14 below). The Applicants objective is to seek the
additional protection afforded by the 1965 Act and by so doing to prevent any
encroachment on or interference with the land.
6.
Members are reminded that, although they may sympathise with the
Applicant’s intentions, each application has to be determined on the evidence
and legal issues alone. If the
application satisfies the relevant statutory requirements then the Council may
accept the application but, if the statutory requirements are not satisfied,
the Council has no option but to reject the application.
7.
The
application is made under Section 22 of the 1965 Act on the grounds that the land
has become a village green by reason of use by local inhabitants for lawful
sports and pastimes as of right for not less than twenty years. The claim has been lodged on the basis that
the land has been used for recreation by the inhabitants of Gurnard without
force, without secrecy and without permission for the period 1970 to 1990 and
this use is continuing.
8.
The Applicant has submitted twenty statements and two supplementary
letters in support of her three separate Gurnard applications. The supporting statements are in the form of
completed questionnaires and are summarised at Appendix B1
(column 2 of the summary indicates to which application(s) the respective
statements refer). Thirteen of the
twenty statements relate to the former putting green and adjoining land. In addition, the Applicant has provided a
significant number of photographs (both old and new) as evidence of use
together with various newspaper cuttings.
9.
A folder (marked “Folder 1”) containing a copy of the application
together with full copies of the statements and documents submitted by the
Applicant is provided for the Committee Members. A copy has also been placed in the Members Room at County Hall and
a further copy is available for public inspection at the Customer Services
Centre, County Hall.
10.
The application land is shown for identification only edged with a thick
black line on the plan annexed to this report.
A colour copy of the original application plan is included with the
documents in Folder 1 (page 8). For the
purpose of this report, the land is identified on the annexed plan as three
separate areas marked “A”, “ B” and “C”
respectively.
11.
Area “A”
forms the greater part of the application land being a flat grassed section of approximately
1,759 square metres (0.176 hectares) in the centre of the Green. This was formerly a fenced putting green but
is now indistinguishable from the rest of the green save for a slight
undulation in the ground and some old fence posts on the highway and seaward
sides which are all that remain as evidence of its former use.
Area “B”
12.
Area “B” comprises
a grassed strip of land immediately to the rear of, and sloping down towards,
the beach huts situate along the Esplanade.
Reason would expect that this strip should have been included in the
original registration as there appears to be nothing to distinguish it from the
main green. Unfortunately, the small
scale of the Register Map makes it impossible to determine with any certainty
whether this narrow strip of land is part of the registered village green. However, on balance, it could be concluded
that Area “B” forms part of the land already registered as village green under
unit VG 14.
13.
Area “C” is a
small triangular grassed area that adjoined the former putting green. This area is identified on the Register Map
as part of the registered village green unit VG 14.
14.
The land the subject of the application is part of an area of land
purchased in 1925 by Cowes Urban District Council under Section 164 of the
Public Health Act 1875. Land acquired
under this section is held for the purposes of public recreation. The Isle of Wight Council is successor
authority to Cowes UDC.
15.
The northern and southern end of Area ‘A’ is formed by the boundary
of the registered village green Unit VG14.
This Unit VG14 was registered in 1970 under the original registration
exercise following the enactment of the Commons Registration Act 1965. Area ‘A’ which forms the central area
of the green was excluded from the registration probably because at that time
it was fenced and let as a putting green concession. The putting green ceased operating at the end of 1997 and the
fences were removed at the beginning of 1998.
16.
Since its acquisition in 1925, the land has been maintained by the
Council and its predecessor local authorities for recreational use by the
public.
17.
In accordance with the requirements of the 1965 Act and 1969 Regulations
the application was advertised by notices placed on site and in the County
Press. Copies of the application and supporting
documents were made available for public inspection at the Customer Services
Centre in County Hall and at Cowes Library.
18.
Notice
of the application was sent to Property Services, Planning Services, Community
Development (Parks and Beaches) and Countryside Services.
19.
Notice
of the application was sent to Gurnard Parish Council. The Parish Council has raised no objection
to the registration of the application land as village green.
20.
Notice
of the application was sent to Councillor A J Mundy.
21.
Following advertisement of the three Gurnard applications the Council
received nineteen letters of objection, three of which related specifically to
this application. The letters of objection are summarised at Appendix B2 (column 2 of the summary indicates to
which application(s) the respective letters refer).
22.
Copies of the letters of objection were sent to the Applicant for
comment. The Applicant sought the
advice of the Open Space Society and Alec Samuels (former legal advisor to the
Open Spaces Society) in her response. A
draft Committee report was then prepared and the applicant and, where
appropriate, those objectors with an interest in the land were invited to
comment on the draft report.
23.
A folder (marked “Folder 2”) containing full copies of the letters of
objection and the Applicant’s response together with supplementary comments is
provided for Committee Members. A copy
has also been placed in the Members Room at County Hall and a further copy is
available for public inspection at the Customer Services Centre, County Hall.
24.
The pertinent objections and the Applicant’s response together with any
relevant supplementary comments have been evaluated under the relevant headings
in paragraphs 36 to 74 below.
25.
The application has been supported by the thirteen completed
questionnaire statements and letters referred to in paragraph 8 above. This evidence has been evaluated in
paragraphs 36 to 74 below.
28.
The
legal implications of registration are set out in paragraphs 29 and 30 of
Paper A.
29.
It
is not anticipated that the options placed before the Committee will have any
implications under the Crime and Disorder Act 1998.
30.
The
potential implications under the Human Rights Act 1998 are summarised in paragraphs
38 to 44 (inclusive) of Paper A.
31.
The
Applicant refers to Article 6 of the 1998 Act (right to a fair hearing)
commenting that the Council should not determine an application relating to its
own land without independent expert advice
She has therefore requested that the application be referred to a
non-statutory inquiry.
32.
It
is accepted that where there is a serious factual dispute it would be
appropriate to hold a public inquiry before making a decision. However, the evidence in this application is not generally in
dispute. The issues can be determined
by reference to statute and case law.
It does matter that the Council is also the landowner. If the decision is wrong in law it is
sufficient safeguard for the Applicant to have the option to seek a Judicial
Review. There would be no benefit or justification in referring the matter for
independent report or inquiry.
33.
(a) To accept the application and register
the subject land as a town or village green.
(b) To reject the application on the grounds
that the land does not satisfy the statutory requirements for registration.
(c) To appoint an independent inspector to
consider the evidence or hold a non-statutory public inquiry to hear the
evidence and make a recommendation to the Committee.
34.
All
the evidence and representations submitted in support of the application and
the objections to the registration have been assessed and evaluated with
reference to current statute and case law in the preparation of this report.
35. The stated ground for the application is that the land has become a village green by virtue of its use (1) 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 in all four parts of the stated ground. Each part is considered in turn:
(1) LOCAL INHABITANTS
36. The local inhabitants are the residents of Gurnard. The Applicant refers to the statements submitted in support of her application (see paragraph 8 above and Appendix B1). Twelve of the thirteen statements relating to this application are from inhabitants of Gurnard and the remaining one is from a resident of Cowes.
37. All the statements confirm that the land was used by the residents of Gurnard, their family members and friends. They also refer to use by other Island residents as well as tourists and visitors to the area.
38.
The relevant objections can be summarised as follows:
(a)
The
claim of use by local inhabitants is inconsistent with the purpose for which
the land was acquired. The land is
public open space not just for use by local inhabitants. The supporting statements mention use by other Island residents and visitors on holiday from
the mainland. Therefore it is not possible for the
Applicant to show that the use has been predominantly by local inhabitants.
(b) The main body of the green has been used by visiting sailors attending Cowes Dinghy Week in July each year since 1970. During Dinghy Week the primary use is by visitors and dinghy sailors from the mainland.
39. The Applicant’s response to the objections are summarised as follows :
(a) Use of the land by people outside the locality would not automatically defeat the application. What matters is that it is in general used by the inhabitants of a locality. Holiday makers only visit for comparatively short periods of the year but local people live there.
(b) Previous decisions to refuse registration on the grounds that the land was also used by the public has been overturned by the “Sunningwell” case. Use by people other than local inhabitants does not prevent registration as a village green.
(c) It is now only necessary to show that the land has been used by a significant number of local inhabitants. The evidence of the questionnaire statements is sufficient to indicate that the land is, in general, used by the inhabitants of Gurnard.
40. The land was acquired under Section 164 of the Public Health Act 1875 for the purposes of public recreation and has been maintained in such a way as to encourage use by the general public. The putting green concession was intended to attract tourists and visitors from other parts of the Island.
41. Common sense would recognise that a person who resides in the locality of the land in question will be a local inhabitant. Under Section 22 of the 1965 Act (as amended) it is not necessary to define the locality more closely than Gurnard.
42. The statements show that the land has been used by local inhabitants and visitors (both Island and mainland). Undoubtedly many of those using the land would be inhabitants of Gurnard since the area is immediately on their doorstep. Multiple use by local people would outnumber the holidaymakers who may only visit once or at any rate less frequently. This would be particularly true during the winter months.
43. Relevant Case Law
R v Oxfordshire County Council ex parte Sunningwell Parish Council (1999)
Held : that provided there is sufficient evidence to show the use is predominantly by local inhabitants, the fact that the land is also used by the public will not defeat the claim.
R v Staffordshire County Council ex parte McAlpine Homes (2002)
Held : that it only has to be shown that the land is in general used by the local community for informal recreation. “Significant” does not have to be a considerable number.
Issues Arising
44. That the local inhabitants used the application land is not an issue. The evidence of the questionnaire statements on this point is not disputed.
45. It is accepted that Gurnard is a locality or a neighbourhood within a locality for the purposes of Section 22 of the 1965 Act (as amended).
46.
The issue is one of law. The question is, does the use by the
visitors to the area, whether they be Island residents or visitors from the
mainland, defeat the claim of use by local inhabitants?
Conclusion
47.
Referring to the case law above, it
is concluded that the claim of use by local inhabitants satisfies the
requirements of Section 22 of the 1965 Act (as amended).
(2) LAWFUL SPORTS AND PASTIMES
Applicant’s evidence
48. The Applicant refers to the information contained in the supporting statements as evidence of use of the land for lawful sports and pastimes. Seven of the statements are submitted solely in support of this Application. The other six refer also to the Applications for the Esplanade and Beach. The six relevant statements identify a large number of activities as listed in columns 5 and 6 of the summary in Appendix B1.
49. The Applicant also submits that residents were allowed free access to the former putting green to sit and watch the putting or relax and chat and this type of informal activity could be accepted as a lawful sport and pastime .
Objections
50. There were no specific objections to the types of lawful sports and pastimes enjoyed over the land.
51. Of the seven supporting statements that relate to this application, the former putting green is mentioned in four. The others identify activities as diverse as dog walking, kite flying, swimming and sunbathing. As the land comprised in Area “A” was a fenced and gated putting green concession until it ceased operating in 1997 it appears that these statements were referring to the land/beach area around the putting green.
52. The only recreational activity that could be enjoyed on Area “A” between 1970 and 1997 would be related to its use as a putting green. The putting green concession was a commercial activity and as such would not qualify as a lawful sport or pastime. The other activities claimed of sitting and watching the putting or sitting and relaxing are too trivial alone to justify the claim of a sport or pastime.
53. Relevant Case Law
R v Oxfordshire County Council ex parte Sunningwell Parish Council (1999)
Held : that activities such as dog walking, kite flying and solitary or family activities are sufficient to justify registration as long as there is an established pattern of use and it is not trivial and sporadic.
Issues arising
54. There is no dispute about the fact that certain activities took place on the land. The issue is one of law. The question is whether the activities claimed constitute lawful sports and pastimes for the purposes of the 1965 Act.
Conclusion
55. It is concluded that the activities enjoyed on the land are not lawful sports and pastimes within the meaning of the 1965 Act.
AS OF RIGHT
56. The Applicant refers to the statements submitted in support of the application. The twelve statements relating to this application state that no permission was sought and use was not prevented. The Applicant accepts that the area around the former putting green was fenced and gated during the relevant period but contends that the gate was never locked and residents could enter freely without permission. Three of the questionnaires refer to the fence around the putting green, two of these confirm that access could be obtained through the unlocked gate and one mentions obtaining permission to be allowed to sit and watch the game.
57. The relevant objections are summarised as follows:
(a) The putting green was part of land acquired under Section 164 of the Public Health Act 1875 for use by the public and the Council holds it for this purpose therefore prescriptive rights cannot be acquired.
(b) The putting green was fenced throughout the relevant period and was only available for use by paying a fee to an attendant.
(c) The land has been maintained by the Council as open space with facilities provided to encourage public use .The evidence of the putting green reinforces the fact that the land is held as public open space.
58. The Applicant’s response to the objections is summarised as follows:
(a) Land owned by a Local Authority can be registered as Village Green and the designation of land as public open space does not inhibit a claim for registration. The adjoining land was registered as Village Green in 1970. This was also part of the land comprised in the 1925 conveyance and its acquisition under the 1875 Act did not prevent its registration.
(b) The general public has the right to use the land for recreation under the Public Health Act 1875 and the local inhabitants have used the land as a Village Green as of right under the 1965 Act.
(c) The fence around the putting green was erected for safety reasons to prevent the balls being a danger to passers by and not to keep residents out. The fee charged by the licensee was for the hire of the equipment not a fee to enter the putting green area.
(d) The question as of right is whether objectively and reasonably the local inhabitants thought they were entitled to go on the land, not whether the Council thought it had given permission. The extent to which local inhabitants went on to the green is a matter of evidence. For permission there must be some overt act, more than mere tolerance or acquiescence, mere passivity.
59. The whole of the application land was acquired under Section 164 of the Public Health Act 1875 and is held by the Council for the public to use for recreation. Accordingly, the inhabitants of Gurnard and other members of the public cannot acquire rights to use the land under the 1965 Act when they already have that right under the 1875 Act.
60. The 1875 Act authorises the enactment of by laws to control the use of the land. The Council has power to regulate the conduct of the public on the land and use of the land under this type of regulation cannot be “as of right”.
61. The adjoining land comprising Unit VG14 was registered under the original 1965 exercise which provided for automatic registration where there were no objections (see Paper A paragraph 8). Therefore the legislation under which the land was held was not an issue at the time. The current application is made to amend the Register to include land that it is claimed has become a “new” village green since 1970 and accordingly the requirements of Section 22 of the 1965 Act must be satisfied.
62. It is a matter of evidence that, during the relevant period 1970 to 1990, Area “A” was laid out, fenced and gated as a licensed putting green concession. The use of the land was not by toleration or acquiescence but by way of licence.
63. Other members of the public may have entered the putting green to sit and watch the activity or even sit and rest but they would not have been doing so as of right but with the permission of the licensee of the putting concession and the Council (as owner). Such permission need not be communicated either verbally or by notices to those using the putting green area.
Relevant Case Law
64. Hall v Beckenham Corporation (1949)
The case related
to a public nuisance in a Local Authority park acquired under Section 164 of the
Public Health Act 1875. One of the
matters to be decided was the entitlement of the public to use the park. It was held that the Council was the
trustee of the park and had no power to prevent use of the park. This indicated that members of the public
were entitled to enter the park and thus do so by right under the 1875 Act and
not “as of right”.
65.
R v Secretary of State for
Environment (Ex parte Billson) (1998)
The case related
to Ranmore Common. The landowner made a
deed under Section 193 of the Law of Property Act 1925 which allowed public
access for air and exercise. The public
used the land unaware of the existence of the deed. It was held that the public used the land by way of a
licence (and therefore permission) even although they were ignorant of the
licence.
Relevant Commons Commissioners Decisions
66.
Harwich Green, Essex (1974)
Related to land acquired by the Local Authority in 1912 as public walks and pleasure grounds under Section 164 of the Public Health Act 1875. It followed that use of the land since its acquisition in 1912 was explained by the fact that it had been open to the public under the 1875 Act.
67.
The Downs, Herne Bay, Kent (1980)
Related to two
areas of land acquired by the Local Authority in 1881 and 1901 respectively as open
space for the enjoyment of the residents and visitors to Herne Bay. The whole of the land was subject to by-laws
made under Section 164 of the Public Health Act 1875. The use of the land by the inhabitants of Herne Bay was by virtue
of it being open to the public under the 1875 Act.
68. It is accepted that Area ‘A’ has been used openly and without force insofar as the gates to the putting green were unlocked. This is not a matter of dispute. The issue one of law. The question being whether the use of the land was “as of right” or with permission.
Conclusion
69. Referring to the case law above, it is concluded that the inhabitants of Gurnard together with the public generally, have used the land pursuant to the 1875 Act and/or express permission by way of licence. Therefore the use has not been as of right.
NOT LESS THAN TWENTY YEARS
70. The Applicant concedes that Area ‘A’ was fenced and gated during the relevant period but submits that the land was freely accessible through an unlocked gate when the putting concession was in operation. After the fences were removed, the land was open and has now become part of the main green.
Objections
71. There were no specific objections relating to the claim of twenty years use.
72. The relevant twenty year period is 1970 to 1990. The putting green did not cease operating until the end of 1997 and the fences were not removed until early 1998.
Issues Arising
73. There is no dispute as to fact. It is accepted that Area ‘A’ was a putting green concession and that it was fenced and gated (albeit that the gates were not locked). The issue is one of law. The question being whether lawful sports and activities could take place on land which is subject of a licence for a concession run as a commercial activity. Clearly they could not.
74. It is concluded that the former putting green (Area ‘A’) was not available for the uses claimed for the required twenty year period.
75. There is no serious dispute as to the facts of the application. The evidence submitted by the Applicant is generally agreed. It is accepted that the land has been used by the public and residents of Gurnard for recreational activities. This being the purpose for which it was acquired and is maintained. The application involves only questions of law and the Council is bound by the authorities in the cases referred to above.
It is recommended as follows:
76.
Area ‘A’
That, in respect of that part of the application land marked ‘A’, the application be rejected on the grounds that the legal requirements have not been met, specifically that the Applicant has not proved the land has been used for lawful sports and pastimes as of right for twenty years for the following reasons:
(a)
the putting green was a commercial activity which would not qualify as a
lawful sport or pastime and any other use of the land is too trivial to be a
lawful sport and pastime within the meaning of the 1965 Act
(b)
use of the land by the inhabitants of Gurnard is exercisable by the fact
that the land is open to the public under the Public Health Act 1875 and not as
of right.
(c)
the land was fenced and gated as a putting green concession and was not
available for the uses claimed during the relevant 20 year period.
77.
Area ‘B’
That, in respect of that part of the application land marked ‘B’ the application be rejected on the grounds that on balance it is concluded that this land forms part of the village green registered under Unit VG14 and therefore the application conflicts with that registration. The Register of Town and Village Greens to be noted accordingly.
78. Area ‘C’
That in respect of that part of the application land marked ‘C’ the application be rejected on the grounds that this land is identified on the Town and Village Green Register Map as part of the village green registered under Unit VG14 and therefore the application conflicts with that registration.
APPENDICES
ATTACHED
79.
Application
Map
80.
Summary
of Questionnaire Statements (Appendix B1)
81.
Summary
of Objections (Appendix B2)
82.
Application
and Supporting Documents.
83.
Objections
and replies to objections.
84.
Supplementary
comments from Applicant and Objectors
85.
Legislation
Public Health Act 1875
Commons Registration Act 1965
Commons Registration (New Land)
Regulations 1969
The Human Rights Act 1998
The Countryside and Rights of
Way Act 2000
86.
Case Law
R v
Oxfordshire County Council Ex Parte Sunningwell Parish Council (1999)
3A11ER385(HL)
R v Staffordshire County Council Ex Parte McAlpine
Homes (2002) EW CH 76 (Admin)
87.
Commons Commissioners decisions
Harwich Green Essex (1974) (12/D/43)
The Downs, Herne Bay, Essex
(1980) (219/D/2)
Contact Point: Margaret Kirkman/Vivien Mann : F 3214/3209
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M J A FISHER
Chief Executive Officer and
Strategic Director of Corporate
Services
