Minutes 29 May 2003

3. DECLARATIONS OF INTEREST

There were no interests received at this stage.

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

The Chairman welcomed the parties to the hearing and introduced the members of the Committee. He then outlined the procedure that the meeting would follow. The Chairman requested the Committee to confirm that they had read all the papers connected to the applications. Confirmation was given.

Both parties relating to the Village Green applications in Gurnard had submitted a number of letters. The Committee agreed to adjourn for a short time in order give consideration to this late evidence. Upon reconvening the committee confirmed that they were willing to take account of the late evidence and gave consideration to the reports below.

(a) Applications for Registration of New or Village Green

The report set out the historical and legal background relating to village greens. As Registration Authority, the Council was responsible for compiling and maintaining the Registers of Common Land and Town or Villages Greens and for any amendments to the Registers. The report provided a summary of the legal requirements that needed to be satisfied in order an area to be registered as a new village green under the 1965 Act. The Committee were reminded that each application had to be determined strictly on legal issues and evidence.

RESOLVED :

THAT the contents of the report be noted.

(b) Application for Registration of New Town or Village Green – Former Putting Green an adjoining Land at Gurnard

The Committee gave consideration to 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 application was in three parts. Area “A”, which formed the greater part of the application land was a flat-grassed section in the centre of the Green. This had been a fenced putting green but was now indistinguishable from the rest of the green. Area “B” comprised of a grassed strip of land immediately to the rear of, and sloping down towards the beach huts situate along the Esplanade. Area “C” was a small triangular grassed area that adjoined the former putting green.

The Strategic Director introduced the report, which detailed the background to the application, relevant case law and considered the four criteria that were required to be satisfied in order for the application to be successful. The Committee were advised of objections that had been received. Members of the Committee were then able to ask questions. The Applicant then had the opportunity to present her case and was asked questions by the Committee.

The Committee then adjourned into private session in order to take legal advice and to consider their decision. Upon reconvening in public, the Committee announced their decision.

The Committee decided that Area “B” and “C” were already village greens registered under VG14 and therefore they had no powers to register these areas again. The application in relation to area “A” was rejected because the Committee believed that not all the criteria for registration had been met for the following reasons:

§ It was accepted that a significant number of local inhabitants used the area in question and the application therefore met the criteria for registration on this point.

§ The criteria for registration in relation to lawful pastimes was not met as merely sitting down watching putting was considered too trivial to be a pastime for the purposes of this application.

§ The use by local people and visitors of the putting green area was under a licensed concession and any use of the land at that time was by way of licence. The Committee noted that some people asked and were given permission. The landowner purchased the land for public use under the Public Health Act and maintained the land for the benefit of the public so any permission was active and encouraged by the landowner. Any use by local inhabitants was not as of right as use was with permission and encouragement

§ The criteria in relation to 20 years uninterrupted use was not met as public use of the land was interrupted by the activities of the putting green.

In reaching their decision, the Committee had regard to all of the case law set out in the report and the Commons Commissioners decisions. The Committee noted that the existing village green was registered under the old law in 1970 following the enactment of the Commons Registration Act 1965 when the criteria for registration was different to today.

The Committee held that they were willing to determine the issue themselves and did not believe that the interests of justice merited a non-statutory public inquiry or Inspector’s opinion.

RESOLVED :

THAT the application to register the Former Putting Green and adjoining Land at Gurnard be rejected as the criteria for registration had not been met for the reasons set out above

The Council had 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 application comprised of two areas, Area “A” consisted of the promenade on the west side of Gurnard Green known as The Esplanade and a slipway area to the south and Area “B” which comprised of two sections with an overall area of approximately 787 square metres. They formed either end of a triangular shaped piece of land, the wider section adjoined Shore Road, sloping east and narrowing at the end where it adjoined the slipway area to the Esplanade. The Committee noted that the central area of the triangle was the subject of a 1986 lease to Gurnard Sailing Club and was not included in the application.

The Strategic Director introduced the report, which detailed the background to the application and consideration was give to the four criteria which were required to be present before an application could be successful case law referred to in the report was noted. The Committee were advised of the objections that had been received. Members of the Committee were then able to ask questions. The Applicant had the opportunity to present her case and was asked questions by the Committee.

A letter from the local member was read out. Objections had been received from the Gurnard Sailing Club because the application included an area of land used by the Club for the storage of dinghies. They pointed out that registration of this land as a village green would prohibit the use for dinghy parking and would lead to a severe curtailment of the Club’s sailing activities. A representative from Gurnard Sailing Club addressed the Committee.

The Committee then adjourned into private session in order to take legal advice and consider their decision. Upon reconvening in public, the Committee announced their decision.

The Committee found that the criteria for registration as a village green were not met. The Committee believed that

§ The criteria for registration in relation to significant use by local inhabitants was satisfied for both area “A” and “B” of the application.

§ The criteria for registration in relation to lawful pastimes was satisfied for both area “A” and “B”.

§ The use of both area “A” and “B” was not as of right and therefore did not meet the criteria for registration in this regard. Both Area “A” and “B” were purchased under the Public Health Act 1875. The slipway area was acquired under Section 175 for public health purposes and the remaining land was acquired under Section 164 for public recreation. The Committee believed that as the Council could regulate use of the land by bylaws, it could not be ‘as of right’ as that would have required use without permission. As the land was acquired specifically for use by the public and was maintained by the Council for the benefit of the public the use could not be said to be without permission.

§ Area “A” met the criteria for registration in terms of uninterrupted use. However the use of Area “B” had been interrupted by the storage of dinghies.

The Committee also held that they were willing to determine the issue themselves and did not believe that the interests of justice merited a non statutory public inquiry or an Inspectors’ opinion.

RESOLVED :

THAT the application for both Area “A” and “B” to be registered as village greens be rejected in its entirety for the reasons given above

(d) Application for the Registration of a New Town or Village Green – The Beach at Gurnard

The Council had received an application to register part of 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 Applicant sought to register 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. The Applicant was concerned that areas of the beach had been leased for slipways and her objective was to ensure that the beach was afforded the protection of the 1965 Act. This would prevent any such further encroachment on or interference with the beach.

The Strategic Director introduced the report, which detailed the background to the application and consideration was given to the four criteria which were required to be present before an application could be successful case law referred to in the report was noted. The Committee were advised of the objections that had been received. Members of the Committee were then able to ask questions. The Applicant had the opportunity to present her case and was asked questions by the Committee.

The Crown Estate Commissioner and Gurnard Sailing Club had 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.

The Committee then adjourned into private session in order to take legal advice and consider their decision. Upon reconvening in public, the Committee announced their decision.

The Committee found that the criteria for registration as a village green had not been met. The Committee believed that

§ The criteria for registration in relation to use by local people was satisfied.

§ The criteria for registration in relation to lawful sports and pastimes was met in relation to the beach area but the Committee felt that there was no evidence that the path was used for any other purpose than getting from one place to another. Therefore the path area did not meet the criteria for registration.

§ The use of the beach above high water mark had been pursuant to the 1875 Public Health Act, therefore the use was not as of right. Any use by local inhabitants was with permission and encouragement

§ Prescriptive rights could not be acquired over the foreshore below high water mark. Any recreational use of the foreshore was enjoyed by licence from the Crown and the Council as lessee. Therefore, the use could not be said to be as of right. The Council leased the area for the use of the public and maintained the area for the benefit of the public.

§ With regard to the shore path, the only right established was a prescriptive right for the public generally to pass over on foot.

The Committee also felt that they were willing to determine the issue themselves and did not believe that the interests of justice merited a non-statutory public inquiry or an Inspectors’ opinion.

RESOLVED :

THAT the application to be registered as a village green be rejected in its entirety as the criteria for registration had not been met for the reasons given above

(e) Application for Registration of a New Town or Village Green – Havenstreet Recreation Ground

The Council had 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 application had been made on the basis that the land had been used for lawful pastimes by the residents of Havenstreet without force, without secrecy and without permission since at least 1970 and that use was continuing

The Strategic Director introduced the report, which detailed the background to the application and consideration was give to the four criteria that were required to be present before an application could be successful. The case law referred to in the report was noted.

The local member briefly addressed the Committee. The applicant or other interested persons were not present at the meeting.

The Committee then adjourned into private session in order to take legal advice and consider their decision. Upon reconvening in public, the Committee announced their decision.

The Committee found that the criteria for registration as a village green had not been met.

§ The application met the criteria for registration in relation to use by local people.

§ The application met the criteria for registration in relation to lawful pastimes.

§ The whole of the land was acquired under Section164 of the Public Health Act 1875 and was purchased for the express purpose of public recreation. The Council provided bins and maintained the ground for the benefit of the public and any use of the land by the public was with active encouragement and could not be said to be without permission. Therefore, it did not meet the criteria for registration in that the use was not as of right

§ The application met the criteria for registration in relation to the uninterrupted period of use exceeding the statutory limit.

The Committee also believed felt that they were willing to determine the issue and that the interests of justice were not served by an non statutory public inquiry or an Inspector’s opinion.

RESOLVED :

THAT the application for registration as a village green be rejected for the reasons set out above.

CHAIRMAN