PAPER B2

 

                                                                                                                Purpose : for Decision

 

Committee :   REGULATORY APPEALS COMMITTEE

 

Date :              29 MAY 2003

 

Title :               APPLICATION FOR REGISTRATION OF NEW VILLAGE GREEN -

                        THE ESPLANADE AND LAND TO THE SOUTH AT GURNARD

 

REPORT OF THE CHIEF EXECUTIVE OFFICER AND STRATEGIC DIRECTOR OF CORPORATE SERVICES

 



PURPOSE/REASON

 

1.                  The Council, as registration authority, has received an application to register the Esplanade and land to the south at Gurnard as 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 a town or village green.  The application is brought before the Committee for decision.

 

BACKGROUND INFORMATION

 

2.                  The application, which relates to the Esplanade and land to the south is the second of three village green applications made by Mrs Elizabeth Campbell of Wardwicke Cottage, Baring Road, Gurnard, Cowes, for the registration of land at Gurnard.

 

3.                  The Applicant has expressed disquiet about possible inaccuracies on the Council’s Register Map.  She has done a great deal of research and is very knowledgeable about the history of Gurnard Green (also known as Woodvale Green).   It is the Applicant's view that part of the land she is seeking to register should have been registered under the original 1965 exercise.  The suggestion is that an error was made when transferring details of the Register Unit VG14 from the application plan to the Register Map in 1977.  The Council does not have any of the original 1968 application documents and is unable to prove or disprove this theory.  In any event the Council, as the registration authority, has no powers under the 1965 Act to correct clerical errors or omissions even if these were proved to exist.

 

4.                  The Applicant is seeking to register what she believes should have been registered under the original exercise.  The land is held by the Council for public recreation (see paragraphs 13 and 14 below) and the applicant’s objective is to seek the additional protection of the 1965 Act to prevent any encroachment on or Interference with the land.

 

5.                  The members of Gurnard Sailing Club, which is a local dinghy club supported by lottery funding, have expressed considerable concern about this application which includes an area of land used by the Club for the storage of dinghies.  They point out that registration of this land would prohibit use for dinghy parking leading to a severe curtailment of the Club’s ability to provide for its sailing activities which could lead to loss of members and potentially the demise of the Club.

 

6.                  Members are reminded that although they may sympathise with the Applicant's intentions and the Sailing Club’s concerns, 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.

 

DETAILS OF APPLICATION

 

 

7.                  The application is made under Section 22 of the 1965 Act that the land has become a village green because it has been used 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 that 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).  Ten of these statements relate to the land the subject of this application.  In addition, various photographs and press cuttings are submitted as evidence.

 

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 and a copy has also been placed in the Members’ Room at County Hall for ease of reference.  A further copy is available for public inspection at the Customer Services Centre, County Hall.

 

LOCATION AND SITE CHARACTERISTICS

 

10.             The application land is shown for identification only edged with a thick black line on the plan annexed to this report.  For the purpose of this report, the land is identified as two separate areas marked area “A”, and “B” respectively.  A colour copy of the original application plan is included in the documents in ‘Folder 1’ (page 32).

 

 

11.             Area “A”

 

Area “A” comprises the promenade on the west side of Gurnard Green known as The Esplanade and a slipway area to the south.

 

The Esplanade is a hard surfaced walkway which adjoins the sea wall and runs the whole length of Gurnard Green.  It also includes a paved patio area to the front of the beach huts which back onto the green.

 

The “slipway area” comprises a small stretch of tarmac with some painted double yellow lines and a hard surfaced slipway extending seawards which provides access to the beach.

 

12.             Area “B”

 

Area “B” comprises two sections with an overall area of approximately 787 square metres.  They form either end of a triangular shaped piece of land, the wider section adjoining Shore Road, sloping east and narrowing at the end where it adjoins the slipway area to the Esplanade. The central area of the triangle is the subject of a 1986 lease to Gurnard Sailing Club and is not included in the application. 

 

The greater part of Area “B” is made up of rough grass with a number of mature oak trees.  Some areas of the land have been concreted. The southern boundary is marked by a narrow winding stream that is spanned by several small wooden bridges to access residential properties backing onto the land. The eastern and northern boundaries are marked by a post and chain link fence with an un-gated opening at the Shore Road end.  The narrow west end is a hard surfaced area with an ungated opening onto the Esplanade and slipway.

 

RELEVANT HISTORY

 

13.             Area A

 

The Esplanade (excluding the “slipway area”) forms the most western strip of the area of land purchased in January 1925 by Cowes Urban District Council under Section 164 of the Public Health Act 1875.  Following its acquisition in 1925 it was laid out by the Urban District Council for public recreation and has been maintained as such by Isle of Wight Council and its predecessor local authority owners.

 

The paved patio to the front of the beach huts was constructed in about 1990 by Medina Borough Council as part of an improvement programme for the area.

 

The “slipway area” to the south was purchased by the Urban District Council in June 1925 under Section 175 of the 1875 Act.

 

In 1998 the responsibility for maintenance of the tarmac area on the landward side of the slipway was passed from Leisure and Cultural Services to the Highways Department although it is not part of the adopted highway.

 

14.             Area B

 

Area “B” is the southern most part of the land acquired by Cowes Urban District Council in January 1925 for the purposes of public recreation.

 

In 1986, Medina Borough Council leased the central section of this land to Gurnard Sailing Club and hence this section has not been included in the application.  In 1989, the Borough Council agreed to extend the 1986 lease (of the middle area) to take in additional land to the west and east (Area “B”). The Sailing Club was then permitted to occupy this additional land as a dinghy park pending negotiations and completion of a formal lease.

 

Following Local Government Reorganisation in 1995, the Isle of Wight Council, as the successor authority, continued the negotiations for the lease. During the course of these negotiations, the Sailing Club obtained significant grant funding to commission a new clubhouse.  As a result, its membership increased and it sought a longer term lease to allow it to enhance and upgrade the dinghy park.  The negotiations for the proposed new lease have not yet been concluded and, in the meantime, the Sailing Club has continued in occupation of Area “B” which it uses for the storage of dinghies.

 

FORMAL CONSULTATION

 

Advertisement

 

15.             In accordance with the requirements of the 1965 Act and the 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. 

 

Relevant Council Departments

 

16.             Notice of the application was sent to Property Services, Planning Services Community and Development (Parks and Beaches) and Countryside Services.

 

Parish and Town Councils

 

17.             Notice of the application was sent to Gurnard Parish Council.  The Parish Council object to the proposed registration on the grounds that the land has not been used as of right.

 

Local Member

 

18.             Notice of the application was sent to Councillor A J Mundy.

 

THIRD PARY REPRESENTATIONS

 

Objections

 

19.             Following advertisement of the three Gurnard applications, the Council received nineteen letters of objection, fourteen of which relate 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).

 

20.             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 a proprietary interest in the land were invited to comment on the draft report.

 

21.             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.

 

22.             The pertinent objections and the Applicant’s response thereto together with any relevant supplementary comments have been evaluated under the relevant headings in paragraphs 34 to 75  (inclusive) below.

 

Supporters

 

23.             The application has been supported by the ten completed questionnaire statements referred to in paragraph 8 above and summarised at Appendix B1.  This evidence has been evaluated in paragraphs 34 to 75 (inclusive) below.

 

FINANCIAL IMPLICATIONS

 

24.             The land the subject of this application is owned and maintained by the Council for recreational use and there will be no further financial implications in this respect.

 

25.             If the Committee decides to seek independent expert advice, the cost of referring the application to Counsel could be between £1,000 and £5,000 (depending on complexity) and the cost of a non-statutory public inquiry could be between £15,000-£20,000 (depending on length and number of witnesses).  There is no allocation in the budget for this.

 

LEGAL IMPLICATIONS

 

26.             The Legal implications of registration is set out in paragraphs 29 and 30 of Paper A.

 

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

 

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

 

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT 1998

 

28.             The potential implications under the Human Rights Act 1998 are summarised in paragraph 39 and 44 (inclusive) of Paper A.

 

29.             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.

 

30.             It is accepted that where there is a serious factual dispute it would be appropriate to hold an independent inquiry before making a decision.  However, the evidence in this application is not generally in dispute.  The issues can be determined by reference to case law and statute.  It does not matter that the Council is also the landowner.  If the decision is wrong in law the applicant has sufficient safeguard in having the option to seek a Judicial Review.  There would be no benefit or justification in referring the matter for independent report.

 

OPTIONS

 

31.             (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.

 

EVALUATION/RISK MANAGEMENT

 

32.             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.

 

APPLICATION

 

33.             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

 

Applicant’s evidence

 

34.             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).  Of the ten statements relating to this application, six have been completed by local residents.  The remaining four are from residents of Cowes (2) and Newport (2) although two of these originally lived in Gurnard and have continued to visit and use the land after moving away.

 

35.             All the statements confirm that the land was used by the residents of Gurnard, their families and friends.

 

Objections

 

36.             The pertinent objections are summarised as follows:

 

(a)               The Esplanade and slipway (Area ‘A’) is owned and maintained by the Council for use by the public at large.  The provision of deck chair concessions and beach huts would attract visitors and holidaymakers to the area.  The use of this land has been by the general public and not primarily local inhabitants.  The supporting statements confirm use by other Island residents together with tourists and visitors on holiday from the mainland.

 

(b)               The land to the south (Area ‘B’) has been occupied and used by Gurnard Sailing Club for a dinghy storage area during part of the relevant period.  The use of this land has therefore been by club members (some of whom are resident in Gurnard) and visiting dinghy sailors not by local inhabitants.

 

37.             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 claim.  It only has to be shown that there has been general use of the land by the inhabitants of a locality.

 

(b)               The evidence in the statements show that a significant number of residents of Gurnard use the land for recreation.  The Sailing Club are mainly residents of Gurnard.

 

(c)               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.

 

(d)               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.

 

Comments

 

38.             The land was acquired under Section 164 of the Public Health Act 1875 for public recreation.  The Council has provided facilities which would attract people from outside the immediate locality.  However, a large number of those using the area will be those from the surrounding neighbourhood. During the winter months in particular the use would predominantly be by local inhabitants.

 

39.             The land to the south (Area “B”) has not been maintained to the same extent as the remaining green and, prior to its use by the Sailing Club, was generally a rough grassy area with trees and some undergrowth.  This area would be unlikely to be used by the general public but would be attractive for children’s play, as claimed in the questionnaire statements.

 

40.             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.

 

41.             It is clear, from the information contained in statement questionnaires, that the land the subject of this application has been used by the residents of Gurnard.  It has also been used by Island residents outside the locality together with tourists and visiting dinghy sailors, particularly during the summer months.  However, it is to be expected that a substantial number of those using the land would be from the surrounding neighbourhood.

 

Relevant Case Law

 

42.             R v Oxfordshire County Council Ex Parte Sunningwell Parish Council (1999)

 

It was 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.

 

43.             R v Staffordshire County Council Ex Part McAlpine Homes (2002)

 

It was held that it only has to be shown that the land is in general use 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.  It is accepted a significant number of those using the land were inhabitants of Gurnard and that Gurnard is a locality for the purposes of S22 of the 1965 Act as amended.

 

45.             The question is one of law.  Does the use by visitors to the area defeat the claim of use by local inhabitants?

 

Conclusion

 

46.             Referring to the case law above, it is concluded that the requirements of Section 22 (as amended) are satisfied as regards use by local inhabitants.

 

(2) LAWFUL SPORTS AND PASTIMES

 

Applicant’s evidence

 

47.             The Applicant relies on the information contained in the completed questionnaire statements, supplementary letters and the photographs submitted in support as evidence of the use of the land for lawful sports and pastimes.  The ten statements relating to this application identify a variety of activities as listed in columns 5 and 6 of the summary in Appendix B1.

 

48.             The statements refer to sunbathing and picnics outside the beach huts and watching the yachts and regatta activities from the Esplanade and slipway (Area “A”).  This is supported by photographs taken in the 1980’s of people relaxing/sunbathing along the Esplanade and sitting on the sea wall. Most of the other photographs of the Esplanade pre-date the relevant application period. Other activities such as dog walking, strolling and socialising are also mentioned.

 

49.             The statements and supplementary letters describe the land to the south (Area “B”) as an area for children to play and picnic. They detail specific activities such as tree climbing, “plodging” in the stream and “pooh sticks”. An undated photograph (annexed to questionnaire 16) also shows children tobogganing on this land.

 

Objections

 

50.             There were no specific objections to the activities claimed to have been enjoyed over the land.

 

Relevant Case Law

 

51.             Staffordshire County Council Ex Parte Sunningwell Parish Council (1999)

 

Held : Informal modern activities such as dog walking and children’s play as well as traditional ones are relevant for the purposes of registration.

 

Issues Arising

 

52.             There is no dispute about the fact that certain activities took place over the land.  The issue is one of law.  The question being whether the types or activities claimed constitute lawful sports and pastimes for the purposes of the 1965 Act.

 

Conclusion

 

53.             With reference to the above case law it is concluded that the recreational activities claimed to have been enjoyed on Area ‘A’ and ‘B’ of the application land would constitute lawful sports and pastimes for the purposes of the 1965 Act.

 

(3) AS OF RIGHT

 

Applicant’s evidence

 

54.             The Applicant refers to the statements in support of her application.  Five of the statements relating to this application state that no permission was sought and the use was not prevented.  One refers to it being public land. Three of the statements mention that use was interrupted by the recent Seaclean Wight works (Area “A”) and one of these plus two others comment that the use was prevented by the Sailing Club dinghy park. (Area “B”).

 

55.             The Applicant submits that the land was acquired as open space and the local inhabitants used the land for recreation as of right.  There were no signs or barriers erected on the Esplanade or Slipway area to prohibit or prevent the use of the land for recreation.  The land has been used without force, without secrecy and without permission. The residents of Gurnard who used the land genuinely believed that they could do so as of right.

 

Objections

 

The pertinent objections are summarised as follows:

 

56.             (a)       The land the subject of the application was acquired by the Council for the purposes of public recreation under the Public Health Act 1875.  The Council holds the land for public use which prevents the accrual of prescriptive rights therefore any use of the land cannot be “as of right”.

 

(b)       With regard to Area ‘B’, this area of land has been used by Gurnard Sailing Club as a dinghy park.  Fences were erected and notices placed on site to the effect that the land was for use by the members of the Sailing Club.  Any person using the land would be aware the Sailing Club was in occupation of the land.

 

57.             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 Applicant refers to village green status granted in 2002 to Clayton Playing Fields in Royton Oldham Manchester.  A deed of gift granted permission for formal sports but the deed gave no permission for informal activities.  Arguments were raised about implied permission but the application was successful.

 

(d)               With regard to the land to the south (Area “B”) the Applicant does not dispute that a fence was erected by Gurnard Sailing Club or that dinghies were stored on the land.  However this land was accessible to the public through ungated openings in the fence at the eastern and western ends.  The only notice was to indicate that the land was used by the Sailing Club for the storage of dinghies.  There was no notice specifically prohibiting the public from using the land for recreation. Children could freely go on to the land to play and had not been prevented from so doing.

 

Comments

 

58.             The application land was acquired by the Council under the Public Health Act 1875.  The slipway area was acquired under Section 175 of the 1875 Act which gives local authorities a general power to acquire land for public health purposes.  The remaining land was acquired under Section 164 of the 1985 Act for the purposes of public recreation.  Accordingly use of the land, for whatever purposes, is pursuant to the 1875 Act and is not “as of right”.

 

59.             The 1875 Act authorises the enactment of byelaws 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”.

 

60.             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.

 

61.             The Council is not bound by the successful Clayton Playing Fields registration referred to by the Applicant.  The land has been the subject of two previous applications.  Both these applications, which were opposed and had the benefit of Counsel’s opinion, were rejected.  There were no objections to the third application and Counsel’s opinion was not sought.  The decision to accept the application was made by the Commons Registration Sub-Committee of Oldham MBC against the recommendation of the Committee’s legal advisor.  The land is held on trust by the Council and the decision to grant village green status to the land is/was the subject of an inquiry under Section 8 of the Charities Act.

 

Relevant Case Law

 

62.             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”.

 

63.             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

 

64.             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.

 

65.             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.

 

Issues Arising

 

66.             It is accepted that Area ‘A’ has been used openly and although Area ‘B’ was fenced, access could be gained through ungated openings.  The evidence is not disputed.  The issue is one of law.  The question being whether use of the land was “as of right”.

 

67.             It is concluded that the inhabitants of Gurnard together with the public generally have used the land by virtue of the Public Health Act 1875.  Therefore the use has not been as of right.

 
(4) NOT LESS THAN TWENTY YEARS

 

Applicant’s Evidence

 

68.             The Applicant refers to the statement questionnaires relating to this application which cover the period 1940 to 2001 and continuing.  The relevant twenty year period for the purpose of this application is 1970 to 1990 and the statements cover the whole of this period.  The frequency of that use varies between daily, weekly, monthly and occasionally.

 

69.             The Esplanade and slipway (Area “A”) has been available for use during the whole of the relevant period (1970 – 1990) and has continued to be available save for some interruption by safety fencing to protect works connected with the Seaclean Wight Scheme.

 

Objections

 

70.             During the relevant twenty year period Area ‘B’ was fenced by Gurnard Sailing Club for use as a dinghy park.  Work was carried out to level the land and a concrete driveway was constructed over a substantial length of both sections.  The use as a dinghy has increased since the late 1980s.  It was consistently full between March and September and has a significant number of dinghies parked on it during the winter months.  The leveling works, fencing and storage of the dinghies would have interrupted the twenty year qualifying period. 

 

71.             The Applicant does not dispute that dinghies were stored on this land from time to time but asserts that this was mainly during the summer months and during regatta events.  She submits that this dinghy storage would not prevent children playing on the land or substantially interrupt that play.   It has been possible to use that part of the land where dinghies are not parked particularly the area by the stream.  The intermittent storage of dinghies through the year does not necessarily break the continuity of use.  No one expects that local inhabitants should use the land every day for twenty four hours a day.

 

Comments

 

72.             The relevant twenty year period claimed in the application is 1970 to 1990. It is necessary to show that the inhabitants have indulged in lawful sports and pastimes over the land for the whole period.

 

73.             The Esplanade and slipway area (Area “A”) was available for use during the relevant twenty year period.  However, it is questionable whether the full twenty year period could be enjoyed in relation to the land to the south (Area “B”) which was used for the storage of dinghies.  It would not be possible for the lawful sports and pastimes claimed to be enjoyed over that land occupied by the dinghies.  It is clear that a significant part of the land could not be used for the recreational use claimed for a large part of the relevant period.

 

74.             It is accepted that the land would not be used for recreational activities every day.  The use of a village green would be seasonal; more in summer and school holidays and less in winter.  There will be days when no recreation takes place.  That does not matter.  What is important is that there is nothing that would prevent the lawful sports and pastimes taking place on the land.  If cars, and likewise dinghies, are parked on the land this is an interruption of any use of the land for sports and pastimes.

 

Issues Arising

 

75.             There is no dispute as to fact.  It is accepted that Area ‘A’ was open and accessible and that dinghies were parked on Area ‘B’.  The issue is one of law.  The question being whether the parking of dinghies on the land interrupted the use of that land for lawful sports and pastimes.

 

Conclusion

 

76.             It is concluded that the use of Area “A” has been enjoyed for the full twenty year period but the use of “Area B” was interrupted during the relevant period by the storage of dinghies.

 

RECOMMENDATIONS

 

77.             That the application be rejected on the grounds that the legal requirements for registration have not been met, specifically that the use of the land by the inhabitants of Gurnard has been by virtue of the Public Health Act 1875 and not as of right.

 

78.             In addition, the land to the south identified as Area “B” was not available for use during the whole of the relevant twenty year period.

 

APPENDICES ATTACHED

 

79.             Application Map

80.             Summary of Questionnaire Statements (Appendix B1)

81.             Summary of Objections (Appendix B2)

 

BACKGROUND PAPERS

 

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

 

Hall v Beckenham Corporation (1949) 1A11ER423

R v Secretary of State for Environment Ex Parte Billson (1998) 2A11ER587

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

 

 

M J A FISHER

Chief Executive Officer and

Strategic Director of Corporate Services