PAPER
C
Purpose
: For Decision
Committee : REGULATORY APPEALS
COMMITTEE
Date : 29 MAY 2003
Title : APPLICATION
FOR REGISTRATION OF NEW TOWN OR VILLAGE GREEN – HAVENSTREET RECREATION
GROUND
REPORT OF THE CHIEF
EXECUTIVE OFFICER AND STRATEGIC DIRECTOR OF CORPORATE SERVICES
1.
The Council, as registration authority, has received an application to
register Havenstreet Recreation Ground, Church Road, Havenstreet, Ryde 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.
DETAILS OF THE APPLICATION/ORDER
2.
The application has been submitted by Mr David John Watts of “All
Seasons”, Church Road, Havenstreet, Ryde, on behalf of the Havenstreet
Environmental Forum.
3.
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 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 residents of Havenstreet without
force, without secrecy and without permission since at least 1970 and that use
is continuing.
4.
The Applicant has submitted eleven statements in support of his
application. The supporting statements
are in the form of completed questionnaires and are summarised at Appendix C.
5.
A folder (marked “Folder 3”) 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 for ease of reference and a further copy is
available for public inspection at the Customer Services Centre, County Hall.
LOCATION AND SITE CHARACTERISTICS
6.
The application land is shown edged with a thick black line on the plan
annexed to this report.
7.
It comprises a rectangular shaped plot of land with an overall area of
approximately 1.3 hectares (3.3 acres).
It is located on the eastern side of Havenstreet village. The western boundary of the land immediately
abuts Church Road. Access to the land
is from Church Road through an un-gated entrance in the south west corner. There is an adjacent vehicular gated entrance
which is kept locked. Access can also
be gained from another small unlocked gated entrance, which opens onto Church
Road, towards the north west corner.
8.
The land is made up of a flat area of short mown grass completely
enclosed on all sides by a well kept hedge with a few small trees. Along the far end of the north boundary
there is the remains of a post and wire fence.
Public footpath R7 runs parallel to the southern boundary towards
Rowlands Lane.
9.
Within the Recreation Ground a small brick built public toilet block is
located near the entrance in the south west corner. A notice affixed to the toilet block states “No hard ball games”.
There is a children’s play area along the western boundary of the site with
playground equipment, comprising two swings, a slide and a rocking “horse”. The play equipment is maintained by the
Council. There is also a “poop-a-scoop”
bin just inside the gate towards the north west corner.
RELEVANT HISTORY
10.
The land the subject of the application was purchased in 1961 by Ryde
Borough Council under Section 164 of the Public Health Act 1875. Land acquired under this section is held by
the Local Authority for the purposes of public recreation.
11.
Under the 1961 Conveyance the Council is required to maintain the
boundary hedges and (if necessary) to erect and maintain a substantial fence
along a section of the north boundary to prevent access onto the adjoining
land.
12.
The land was laid out as a public recreation ground and has been
maintained as such by the Council and its predecessor local authority owners.
FORMAL CONSULTATION
13.
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 Ryde Library.
14.
Notice of the application was sent to Property Services, Planning
Policy, Community Development (Parks) and Countryside Services.
15.
There is no Parish or Town Council.
16.
Notice of the application was sent to Councillor C M Gauntlett
THIRD PARTY REPRESENTATIONS
17.
No objections were received to the application
18.
The application has been supported by the eleven completed questionnaire
statements referred to in paragraph 4 above.
This evidence has been evaluated in paragraphs 28 to 58 (inclusive)
below.
FINANCIAL IMPLICATIONS
19.
The land the subject of the application is owned and maintained by the Council
for recreational use and there will be no financial implications in this
respect.
20.
If the Committee decide to seek independent expert advice, the cost of
referring the application to Counsel could be between £1,000 - £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
21.
The legal implications of registration are set out in paragraphs 29 and
30 of Paper A.
IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998
22.
It is not anticipated that the options placed before the Committee will
have any implications under the crime and Disorder Act 1998.
23.
The potential implications under the Human Rights Act 1998 are summarised in
paragraphs 38 to 44 (inclusive) of Paper A.
24.
It is accepted that
where the application land is owned by the Council and there is a serious factual
dispute it would be appropriate to hold a public inquiry before making a
decision. However, no objections have
been received to the application and the evidence 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.
25.
(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.
26.
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.
27.
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 his case in all four parts
of the stated ground. Each part is
considered in turn:
(1)
LOCAL INHABITANTS
Applicant’s
evidence
28.
The inhabitants are the residents of Havenstreet. The Applicant refers to the questionnaire statements submitted in support of his application
(see paragraph 4 above and Appendix ‘C’).
All the statements are from the inhabitants of Havenstreet. Six reside in Church Road.
29.
All the statements confirm the land was used by family members, friends
and other residents of Havenstreet.
30.
There is also evidence that the land is used by people not resident in
the area.. Six of the statements
confirm that people from outside the locality use the land. One adds that this was to join in village
activities. Of the other five
statements, two were not sure and the remaining three did not comment.
31.
There were no objections.
32.
The claim of use by local inhabitants would appear to be inconsistent
with the purpose for which the land was acquired. The land is open to all members of the public for recreation
under the Public Health Act 1875.
33.
Nevertheless, the remote location of the recreation ground makes it
unlikely that it would be used by anyone other than local residents. The exception might be to attend village
events (fetes and football games etc).
This point was touched upon in one of the statements.
34.
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 Havenstreet.
35.
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.
36.
That the local
inhabitants used the application land is not an issue. The evidence of the questionnaire statements
on this point is not disputed.
37.
It is accepted that Havenstreet is a locality or a neighbourhood within
a locality for the purposes of Section 22 of the 1965 Act.
38.
The issue is one of law. The question
is, can land acquired for use by the public generally satisfy the
requirement of use by local
inhabitants.
39.
Referring to 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).
40.
The Applicant refers to the information contained in the supporting
statements as evidence of use for lawful sports and pastimes. The statements identify a large number of
activities as listed in columns 4, 5 and 6 of the summary in Appendix C.
41.
There were no objections.
.Comments
42.
The land has been maintained by the Council for recreational use. Play equipment (swings, slide etc) is provided
for that purpose. The residents of
Havenstreet have undoubtedly used the land for the recreational uses claimed.
43.
It is concluded that the activities enjoyed on the land are lawful sports and pastimes
within the meaning of the 1965 Act.
44.
The Applicant refers to the statements submitted in support of the
application. Nine of the statements
confirm that the use was as of right and no permission was requested. One mentions the dog fouling notices. Two refer to permission being sought for
organised games (Rounders Challenge in 1999 and Cricket ).
45.
Nine of the eleven questionnaire statements acknowledge the land is
owned by the Council, but it appears they believed it to be held for the
benefit of the inhabitants of Havenstreet who therefore used it as of right.
46.
There were no objections.
47.
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 Havenstreet
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.
48.
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”.
49.
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”.
50.
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.
51.
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.
52.
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.
53.
It is accepted that the
land has been used openly and without force by the residents of Havenstreet. Access was readily available through the two
entrances via Church Road. This is not
a matter of dispute. The issue is one
of law. The question being whether the
use of the land has been “as of right”.
54.
Referring to the case law above, it is concluded that the inhabitants of Havenstreet have used the land pursuant to the 1875 Act
. Therefore, the use has not been as of
right.
55.
The Applicant refers to the statement questionnaires which cover the
period 1934 to 2001 and continuing. The
relevant twenty year period for the purposes of this application is 1970 to
1990 and the statements cover the whole of this period. The frequency of use varies between daily,
weekly, monthly and occasionally.
56.
There were no objections.
57.
Since its acquisition in 1961, the land has been made available for
recreational activities and that use has not been interrupted.
58.
It is concluded that recreational activities have been enjoyed over the land for the
relevant twenty year period.
59.
The evidence of use of the Recreation Ground for sports and pastimes by
the residents of Havenstreet is not disputed.
It was for this reason the land was acquired and has been
maintained. The application involves
only a question of law whether that use was “as of right”. In making its decision the Council is bound
by the authorities in the case law referred to in the report.
|
RECOMMENDATION |
|
60.
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 Havenstreet has been by virtue of the Public
Health Act 1875 and not as of right. |
61.
Application Map
62.
Summary of Questionnaire
Statements (Appendix C)
63.
Application and Supporting
Documents.
64.
Case Law
R v Secretary of State of Environment (Ex parte Billson)
(1998) 2AllER587
R v Oxfordshire County Council ex parte Sunningwell
Parish Council (1999) 3AllER385(HL)
65.
Commons
Commissioners decisions
Harwich Green Essex (1974) (12/D/43)
The Downs, Herne Bay, Essex (1980) (219/D/2)
Contact Point : Margaret Kirkman / Viven
Mann, É 3214 / 3209
Chief Executive Officer and
Strategic Director of Corporate Services
