PAPER B3
Purpose
: for Decision
Committee : REGULATORY
APPEALS COMMITTEE
Date : 29
MAY 2003
Title : APPLICATION
FOR THE REGISTRATION OF NEW TOWN OR VILLAGE GREEN - THE BEACH AT GURNARD
REPORT OF THE CHIEF EXEUTIVE OFFICER AND STRATEGIC DIRECTOR OF CORPORATE
SERVICES
1.
The
Council, as Registration Authority, has received an application to register the
Beach 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.
2.
The
application, which relates to the Beach and adjacent path, is the third 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 is seeking to register the beach which she considers to be an
integral part of the village green at Gurnard.
She is concerned about areas of the beach being leased for slipways and
her objective is to ensure that the beach is afforded the protection of the
1965 Act. By so doing she seeks to
prevent any such further encroachment on or interference with the beach. The Crown Estate Commissioner and Gurnard
Sailing Club have expressed concern that registration as a village green could
have serious consequences on the management of the beach, in particular in
respect of sea defence works.
4.
Members
are reminded that 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 objection but to reject the application.
5.
The
application is made under Section 22 of the 1965 Act that the beach has become
a village green by reason of use by local inhabitants for lawful sports and
pastimes as a right for not less than twenty years. The claim has been lodged on the basis that the beach 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.
6.
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). Twelve of the
statements and the two supplementary letters relate to the Beach. In addition, various photographs and press
cuttings have been submitted as evidence.
7.
A
folder (marked ‘Folder 1’) containing a copy of the application together
with full copies of the statements and other 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. A
further copy is available for public inspection at the Customer Services
Centre, County Hall.
8.
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 in the documents in
Folder ‘1’ (page 78).
9.
The
application is to register that part of the beach from the Esplanade sea wall
to Mean High Water and the foreshore from Mean High Water down to Mean Low
Water together with an adjacent strip of land to the south known as Shore Path.
10.
The
application land commences at the beach steps just to the north of Gurnard
Green and ends at the landfall just south of Shore Path. It has an overall area of approximately
18,845 square metres. The northern end
(where it adjoins the Esplanade) is made up of sand and shingle with outcrops
of boulders and the southern end is mainly shingle and boulders. The area is open and unfenced and easily
accessible via the steps to the north and the slipway and pathway to the south.
11.
Shore
Path comprises a hard surfaced strip of land approximately 1.8 metres wide
commencing at the slipway area of the Esplanade and running parallel to the
beach to the south of Gurnard Green.
12.
The
area of beach between the Esplanade and Mean High Water has an overall area of
approximately 476 square metres and is part of the 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 the successor authority to Cowes UDC.
13.
The
beach was included in the annual licence for the putting green concession. The licensee also having the concession for
the hire of “deckchairs, windbreaks and brollies” for use on the beach. The licence required the licensee, amongst
other things, to keep the beach in a clean and tidy condition. The licence was renewed on an annual basis
from 1970 up until 1997 when the putting green concession ceased operating.
14.
The
area of foreshore between Mean High Water and Mean Low Water is owned by the
Crown. It has an overall area of
approximately 18,369 square metres. The
foreshore at Gurnard has been leased to the Council since at least 1979. The last regulatory lease is dated 24 April
1999 for a term of 50 years.
15.
The
1999 lease, which includes other areas of the foreshore around the Isle of
Wight, contains exceptions and reservations in favour of the Crown’s lessees
and licensees and is subject to the public rights of navigation and fishing. The Council is responsible under the lease
for keeping the foreshore clean and tidy.
In 1989 Medina Borough Council employed a contractor to rebuild the
groynes to improve the sea defences and retain the sand and shingle on the
beach.
16.
The
adjoining Shore Path to the south is privately owned and maintained by the
respective owners of the properties fronting onto Shore Path. The owners each having title to that section
of the path immediately fronting their property.
17.
In
1999 a gate was erected at the Esplanade end of Shore Path by one of the
frontager owners. The gate, which
remained unlocked was apparently to encourage cyclists to dismount on entering
the path for the safety of pedestrians and was not intended to be a barrier to
prevent public use. Following a
complaint by a member of the public the gate was removed. The public have acquired a prescriptive
right of way over the path. It is not
on the Council’s Definitive Map.
FORMAL CONSULTATION
18.
Notice
of the application was sent to Property Services, Planning Services, Community
and Development (Parks and Beaches) and Countryside Services.
19.
Notice
of the application was sent to Gurnard Parish Council. The Parish Council objected to the
application on the grounds that the registration would affect areas of private
ownership.
20.
Notice
of the application was sent to Councillor A J Mundy.
Objections
21.
Following
advertisement of the application, the Council received nine letters of
objection relating 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 objections were sent to the applicant for comment. The applicant has sought the advice of the
Open Spaces 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 objections
and the Applicant’s response together with supplementary comments is provided
for Committee Members. A copy has also
been placed in the Members Room in County Hall and a further copy is available
for public inspection in the Customer Services Centre in 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 37 to 87 (inclusive) below.
25.
The
application has been supported by the twelve completed questionnaire statements
and two supplementary letters referred to in paragraph 6 above. This evidence has been evaluated in
paragraphs 37 to 87 (inclusive) below.
FINANCIAL IMPLICATIONS
26.
The
area of beach is owned by the Council and the foreshore is leased to Council by
the Crown. The Council is responsible for
the maintenance of both the beach and the foreshore and there will be no
further financial implications in this respect.
27.
There
are no financial implications for the Council in respect of Shore Path which is
a privately owned footpath maintained by the frontager owners.
28.
If
the Committee decides to seek independent expert advice, the cost of referring
the application to Counsel could be between Ł1,000 and Ł5,000 (depending on
complexity) and the cost of a non-statutory public inquiry could be between Ł15,000
and Ł20,000 (depending on length and number of witnesses). There is no allocation within the budget for
this.
LEGAL IMPLICATIONS
29.
The
legal implications of registration are set out in paragraphs 29 and 30 of Paper
A.
30.
It
is not anticipated that the options placed before the Committee will have any
implications under the Crime and Disorder Act 1998.
31.
The
potential implications under the Human Rights Act 1998 are summarised in
paragraphs 38 to 44 (inclusive) of Paper A.
32.
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.
33.
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.
OPTIONS
34.
(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 it 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.
35.
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.
36.
The stated ground for the application is that the foreshore has become a
village green by virtue of its use (1) by local inhabitants (2) for lawful
sports and pastime (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.
Applicants Evidence
37.
The local inhabitants are the residents of Gurnard. Of the twelve questionnaire statements
submitted in support of this application, six have been completed by local
residents. The other six are from
residents of Cowes (three) and Newport (three) although four of these
originally lived in Gurnard.
38.
All the relevant statements confirm that the land was used by the
residents of Gurnard, their families and friends. They also refer to use by other Island residents together with
tourists and visitors on holiday from the mainland.
39.
The relevant objections are summarised as follows:
(a)
The beach and foreshore at Gurnard is no different to any other public
beach which is used equally by holidaymakers and local residents. It is not
possible to show that the use is predominantly by local residents.
(b)
The location of the Sailing Club at Gurnard encourages visitors to the
beach to take part in and watch sailing events. The Club provides well
organised dingy events for 9 months of the year for both local and visiting
sailors.
(c)
With regard to Shore Path, this is in private ownership and it is the
public at large not local residents who have acquired a prescriptive right to
use it as a footpath only.
40.
The Applicants response to the objections are summarised as follows:
(a)
It is acknowledged that the beach and foreshore is used by people from
outside the locality but this does not necessarily defeat the claim. It only has to be shown that there has been
general use of the land by local residents and the statements clearly show this
to be the case.
(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)
The use of the land would be predominantly by local residents and their
families particularly outside the holiday season.
41.
The statements confirm that the beach and foreshore at Gurnard, like any
other beach area in a seaside resort, has been used by the inhabitants of
Gurnard, other Island residents and holidaymakers. The very nature of the beach
with its sand and the facilities provided by way of deck chair concessions and
a nearby public convenience would encourage use by the general public. The
Sailing Club in particular would attract spectators to watch the yachts and the
dingy events.
42.
Common sense would recognize 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.
43.
Historically, a beach would not have been seen as meeting the statutory
requirements of local inhabitants because of the general use by the public at
large. However the amendment to section
22 of the 1965 Act requiring the use to be only “a significant number” of local
inhabitants would make it easier to register a beach. It is clear that people from outside the locality do visit the
area, particularly as spectators of the sailing/dinghy events. However, the beach at Gurnard is one of the
more remote seaside areas on the Island and less likely to be frequented by
large numbers of holidaymakers.
44.
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.
45.
That the
local inhabitants used the application land is not an issue. The evidence of the questionnaire statements
on this point is not disputed.
46.
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).
47.
The issue is
one of law. The question is, does the
use of the application land by the public, whether they be Island residents or
visitors from the mainland, defeat the claim of use by local inhabitants?
48.
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).
49.
The Applicant relies on the information contained in the completed
questionnaire statements, supplementary letters and photographs submitted in
support as evidence of use of the beach and foreshore for lawful sports and
pastimes. The twelve statements
referring to this application identify a variety of activities as listed in
columns 6 and 7 of the summary in Appendix B1.
50.
The statements refer to numerous activities including swimming,
sunbathing, picnics, building sandcastles, playing games and watching the
yachts and dingy events. This is supported by the photographs of family and
friends generally relaxing and playing on the beach.
51.
No objections
have been raised in connection with the recreational activities claimed to have
been enjoyed over the beach and foreshore.
52.
In relation to Shore Path, this is a footpath in private ownership over
which the public have established a right of way on foot only to access the
adjoining beach/land. The use of this
strip of land, other than as a footpath, is unspecified and is the evidence is
insufficient to justify the claim of sports and pastimes across this strip.
53.
In response to the specific objection above, the Applicant contends that
there is no incompatibility between a village green and a footpath. A footpath can be registered if it can be
shown that the application land as a whole (namely foreshore and footpath) is
used for recreational pastimes.
54.
The nature and use of the beach and foreshore is essentially not a
matter of dispute. The activities identified in the statements can be described
as what may be comprehensively termed the usual seaside recreational activities
(such as sunbathing, building sand castles, playing with children, picnics
etc).
55.
The public have acquired a prescriptive right of way over Shore Path but
there is no specific evidence that it has been used for recreational
activities. Any sport or pastime claimed must be certain and reasonable. It
would appear that the only use that could be claimed is that of a path to get
from one point to another. A footpath
is only capable of registration if it forms an integral part of the land over
which lawful sports and pastimes have been enjoyed.
56.
Shore Path is an entirely separate strip of land only part of which
adjoins the beach.
57.
West Beach Whitstable Commons Commissioners (1980)
Related to a beach above high water mark. Swimming, sunbathing, drinking tea and eating ice cream and generally relaxing was accepted as lawful sport and pastimes for purposes of the 1965 Act.
Issues Arising
58.
There is no dispute that certain activities took place on the beach or
the foreshore (when the tide was out). The issue is one of law.
The question is whether the activities claimed could constitute lawful
sports and pastimes for the purposes of the 1965 Act.
59.
It is concluded that the activities enjoyed on the beach and the
foreshore (when the tide was out) satisfy the criterion of lawful sports and
pastimes within Section 22 of the 1965 Act.
60.
With regard to Shore Path, it is concluded that the path does not
form an integral part of the beach and foreshore. The activities enjoyed on the path would not constitute lawful
sports and pastimes within the meaning of the 1965 Act.
Applicants
evidence
61.
The Applicant submits that the application land is unfenced and easily
accessible. She relies on the information contained in the statements as
evidence that the residents of Gurnard have used the land openly and without
force and that no permission has been sought or given for the use.
62.
Ten of the statements supporting this application state that no
permission was sought and the use was not prevented. Two statements (numbers 9
and 19) make reference to the deck chair concession and one indicates
permission for this concession was sought from the Council. One of the supplementary letters refers to the
hire of Council owned deckchairs, floats and rowing boats.
63.
The objections to the claim are summarised as follows:
(a)
The strip of beach above high water mark is part of the 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 use of the foreshore below high water mark is permitted by the Crown
as owner and the Council as lessee.
(c)
The right to indulge in lawful sports and pastimes attaches to the
surface of the land. When the foreshore is underwater it is not land for the
purposes of the 1965 Act and therefore a right cannot be claimed over it.
64.
The Applicants response to the objections is summarised as follows:
(a)
The inhabitants of Gurnard have used the beach and foreshore
openly. They have never asked
permission nor been prevented from doing so.
There have never been any signs to indicate the use is permitted or by
licence.
(b)
The use of the beach and foreshore has been tolerated by the Crown and
the Council. Toleration does not amount
to permission.
(c)
When the tide is in different types of lawful sports and activities take
place, such as swimming and fishing.
The foreshore has been registered at HM Land Registry. Therefore it must be land and should also be
capable of registration as village green under the 1965 Act.
Comments
65.
There is no dispute that the inhabitants of Gurnard have resorted to the
beach and foreshore for the seaside activities described in the statements. It
is also acknowledged that the use of the foreshore for these activities has
been open and without force.
66.
With regard to the beach: the
area of beach above high water mark is held by the Council for use by the
public under the 1875 Act. Accordingly
the inhabitants of Gurnard cannot acquire the right to use the land under the
1965 Act when they already have that right under the 1875 Act.
67.
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”.
68.
With regard to the foreshore (below high watermark): there are certain well established rights
ancillary to navigation and fishing.
For the purposes of navigation there exists a common law right to cross
the foreshore in the case of emergency.
For the purpose of exercising the right of fishing there may be a right
to cross the foreshore when the tide is out in order to launch a boat. But it does not follow that the public have
the right to go upon or cross the foreshore for any other purpose (such as
swimming).
69.
The limited rights above are recognised in the 1999 Lease between the
Crown and the Council which provides that the foreshore shall be held subject
to and with the benefit of “the public rights of navigation and fishing”. Aright cannot be claimed for the public at
large for the purposes of a village green.
70.
There is also the issue of whether the foreshore, when the tide is in,
can be land for the purposes of the 1965 Act.
Rights attach to the surface of the land and when the land is underwater
it is questionable whether any claimed right can exist. The Applicant points out that the title to
the foreshore is registered under the Land Registration Rules 1925 and
therefore it should also be capable of registration under the 1965 Act.
However, the statutory provisions under which the title is registered at HMLR
is significantly different to those relating to the registration of a village
green. For the purposes of the 1965 Act, land cannot be registered unless the
rights claimed can be exercised over it (i.e. a building would not be capable
of registration). It is well known by the public that their activities on the
foreshore are enjoyed by licence from the Crown and no member of the public
enjoying such activities would suppose that he or she was exercising a public
right.
71.
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”.
72.
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.
73.
Blundell V Catterall (1821)
Held : The public have no public right of bathing in the sea or to cross the
seashore on foot for that purpose.
74.
Brinkman v Matley (1904)
75.
Anderson v Alnwick District Council (1993)
This more recent case relating to the digging for fishing bait approved and followed the above decisions.
Issues Arising
76. The use of the beach and foreshore for the types of recreation claimed is not disputed. The issue is one of law. The question being whether that use has been with permission or as of right.
77.
With reference to the case law above it is concluded that :
(a)
Use of the beach above high water mark has been pursuant to the 1975
Act. Therefore the use is not as of
right.
(b)
Prescriptive rights cannot be acquired over the foreshore below high
water mark. Any recreational use of the
foreshore is enjoyed by licence from the Crown as owner or the Council as
Lessee. Therefore the use is not as of
right.
(c)
With regard to Shore Path, the only right established is a prescriptive
right for the public generally to pass over on foot.
78.
The Applicant refers to the statement questionnaires that provide
evidence of use since 1940 until 2001.
The relevant twenty year period for the purpose of the application is
1970 to 1990 and the statements cover the whole of this period. The residents of Gurnard have used the
application land for recreation for longer than the required twenty years and
this use has been continuing.
79.
The application land has been available without interruption for the
activities claimed throughout the twenty year period. The statements confirm
that the frequency of use has been daily, weekly, monthly or occasionally.
80. It is not disputed that the beach and foreshore has been used for the activities claimed during the relevant twenty year period. However, the foreshore is below the Mean High Water Mark and consequently is covered in water twice a day. Any recreational activities have been interrupted when the tide is in.
81.
The Applicant responds that it does not matter that the foreshore is
sometimes covered in water. Land covered
in water can and has been registered as village green.
82.
The questionnaire statements confirm that the application has been used
during the twenty year period claimed.
One of the statements mentions that use was prevented between 1940/1945
during the war but this is of no matter being prior to the relevant period.
Four statements refer to interruption by the Seaclean Wight Scheme but, as
these statements also relate to the application to register the Esplanade, it
is unclear what, if any, affect this Scheme had on the use of the beach and
foreshore.
83.
The beach and foreshore were undoubtedly used for the recreational
activities claimed during the relevant twenty year period. However, in respect of the foreshore, these
activities have been interrupted twice daily by the incoming tide. The recreational use cannot continue when
the foreshore is covered in water.
84.
It is conceded that water can and has been registered as village green
but only where it forms an integral part of a larger area of land the subject
of recreational activities (ie a pond). In the case of the application land the
entirety of the foreshore is underwater for a considerable period.
85.
A Public Inquiry was held in Whitstable, Kent (2001) to determine an
application to register parts of the beach.
The non-statutory inspector recommended the application be refused. One of the reasons for refusal was that a
substantial part of the land was below Mean High Water and only became
available for lawful sports and pastimes after the execution of sea defence
works.
86.
There is no dispute as to fact.
The issue is one of law. The
question being whether the incoming tide interrupted the use of the foreshore
for lawful sports and pastimes. In the
light of the inspectors recommendation in the Whitstable application it does.
87.
It is concluded that there has been substantial interruption of
the use of the foreshore at high tide and therefore it has not been available
for the recreational activities claimed during the twenty year period.
RECOMMENDATIONS
88.
That the application be rejected on the grounds that the statutory
requirements for registration have not been satisfied, specifically that the
Applicant has not proved that the application land has been used as of right
for twenty years for the following reasons: (a)
the use of the beach above Mean High Water is exercisable by the fact
that the land is open to the public under the Public Health Act 1875 not as
of right. (b)
the use of the foreshore below Mean High Tide has been by licence of
the Crown as owner and the Council as lessee. (c)
the foreshore was underwater for substantial periods and thus was not
available for the recreational uses claimed during the twenty year period. (d)
With regard to Shore Path, the evidence does not
establish use of the land for lawful sports and pastimes. |
APPENDICES
ATTACHED
89.
Application Map
90.
Summary of Questionnaire Statements (Appendix
B1)
91.
Summary of Objectors (Appendix B2)
BACKGROUND PAPERS
92.
Application
and Supporting Documents
93.
Objections
and Replies to Objectors
94.
Supplementary
Comments from Applicant and Objectors
95.
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
96.
Case Law
Brinkman v Matley (1904) 2 Ch 313
Anderson v Alnwick District Council (1993) 3 A11 ER 613
R v Oxfordshire County Council Ex Parte Sunningwell PC
(1999) 3 A11 ER 385 (HL)
97.
Commons Commissioners Decisions
Contact Point : Margaret
Kirkman/Vivien Mann, F 823214/823209
Chief Executive Officer and
Strategic Director of Corporate and Environment Services
