INSPECTOR’S REPORT

ON

VILLAGE GREEN ENQUIRY

CONCERNING LAND AT

WHIPPINGHAM, ISLE OF WIGHT

CONTENTS (see: Vol I. Inspector’s Report)

Chapter	Heading	Page Number
1.0	INTRODUCTORY	1 – 3
2.0	THE LEGISLATION	3 – 4
3.0	THE CONSEQUENCES OF REGISTRATION	4 – 5
4.0	THE APPLICATION	5 – 7
5.0	THE APPLICANT	7
6.0	THE APPLICATION SITE	7 – 8
7.0	THE OSBORNE WORKS SITE	8
8.0	THE OBJECTOR	9 – 10
9.0	PLANNING MATTERS	10
10.0	PROCEDURAL MATTERS	10 –13
11.0	THE STATUS OF THIS REPORT	13 – 15
12.0	THE CLAIMED LOCALITY OR NEIGHBOURHOOD	15 – 18
13.0	THE SITE VISIT	19 – 20
14.0	OUTLINE OF RELEVANT ISSUES	20
15.0	THE EVIDENCE FOR THE APPLICANT	21 – 69
16.0	STATEMENTS MADE BY INTERESTED PERSONS	69 – 76
17.0	THE APPLICANT’S WRITTEN EVIDENCE	76 - 80
18.0	THE AERIAL PHOTOGRAPHS	80 – 82
19.0	THE EVIDENCE FOR OBJECTOR	82 – 120
20.0	THE OBJECTOR’S WRITTEN EVIDENCE	120 – 125
21.0	MY FINDINGS OF FACT	125 – 128
22.0	ACTIVITIES ON THE SITE CARRIED ON BY GKN OR WITH CONSENT OF GKN	129 – 130
23.0	THE IMPROVEMENTS TO THE SITE AND THE TAKING OF HAYCROPS	130 – 132
24.0	SCRAP TIMBER BURNING ETC	132
25.0	THE SHEEP	132 – 133
26.0	THE USERS OF THE SITE DURING THE WHOLE OF 20 YEAR PERIOD CLAIMED	133 – 134
27.0	THE FREQUENCY OF USER AND THE ACTIVITIES CARRIED ON	135
28.0	THE AREA OF THE FIELD USED	135 – 136
29.0	WAS THE USER FREELY, OPENLY AND AS OF RIGHT?	136 – 138
30.0	THE MAIN ISSUES	138 – 141
31.0	HAS SUCH USER BEEN OF RIGHT?	142 – 143
32.0	HAS SUCH USE BEEN FOR LAWFUL SPORTS AND PASTIMES?	144
33.0	HAS SUCH USE BEEN BY A SIGNIFICANT NUMBER OF THE INHABITANTS OF A LOCALITY OR A NEIGHBOURHOOD WITHIN A LOCALITY?	145 – 147
34.0	HAS SUCH USER CONTINUED FOR 20 YEARS AND HAS IT CONTINUED AFTER THE 20 YEAR PERIOD UNTIL DATE OF THE APPLICATION FOR REGISTRATION?	148
35.0	GENERAL	148 – 149
36.0	SUMMARY	149
	APPENDICES (see Vol. 2)
I	THE WHIPPINGHAM COMMUNITY PARTNERSHIP DOCUMENTS
II	THE ENQUIRY DOCUMENTS
III	THE PARTIES CLOSING SUBMISSIONS

1.0 INTRODUCTORY

1.1 The Village of Whippingham in the Isle of Wight has a long established history. I am told, and have no reason to doubt, that one of the earliest references to the area predates the Domesday Book. More recently it is of course famous for its Royal connections, and in particularly its connection with Queen Victoria and Prince Albert whose residence at Osborne House is known throughout the World. Indeed, it was Prince Albert who was largely responsible for the design of the present Parish Church of St Mildred at Whippingham and it was at Osborne House that Queen Victoria died in January 1901. The Village lies to the South of East Cowes and the River Medina runs up to Newport to the West of Whippingham. To the East lies Barton Wood and beyond that Osborne Bay. To the South lies Wootton Bridge and further to the East is Ryde.

1.2 According to the evidence before the Enquiry, which I accept, the present Village of Whippingham comprises four separate parts. Whippingham Church is the centre point of the Village and lies off Beatrice Avenue. It is on sloping ground that runs down from the Whippingham Road to the bank of the River Medina. Whippingham Road runs from Newport to East Cowes. There is a sparsely grouped collection of houses close to the Church and along Beatrice Avenue. Beatrice Avenue links those houses around the Church with Whippingham Road at its Southern end via two dog legs. At the other end it runs into East Cowes. The Village Infant and Primary Schools lie at the junction of Beatrice Avenue and Whippingham Road. Whippingham Road itself rises fairly sharply from the roundabout by Palmers Brook Farm to the South with the brow of the hill being approximately oppoSite the Whippingham Heights Estate and continues past the GKN Osborne Works Site to its left and then dips down into East Cowes.

1.3 The second distinct part of Whippingham lies along Alverstone Road which runs in an Easterly direction from the Whippingham Road at a point slightly downhill from the junction with Beatrice Avenue. Thereafter there are a number of houses along each side of Alverstone Road until one gets to Six Cottages when there is then open countryside. Whippingham Village Stores, the Post Office and the Community Hall all stand on Alverstone Road.

1.4 Thirdly, there is the Whippingham Heights Estate which consists of three roads (Campfield Road, Barton Close and River View) which were all built in the 1960’s. Apparently the Site was an Anti Aircraft Gun Emplacement during the Second World War. Whippingham Heights is geographically distinct from other parts of Whippingham. Indeed, each part of Whippingham is distinct from the other part and is separated from them by open country or agricultural land. The area of Whippingham Heights Estate can be seen quite distinctly in the aerial photograph[1] and lies just to the East of the Whippingham Road. It has no shops or other facilities of its own although there is within the Whippingham Heights Estate a triangle of grass which seems to be available for use by all residents and children. My impression was that the majority of inhabitants of the Whippingham Heights Estate were retired or semi-retired but that was only an impression.

1.5 Although there are no separate amenities within the Whippingham Heights Estate I was told and accept that there is a Neighbourhood Watch Scheme in operation which is distinct from another Neighbourhood Watch Scheme among the residents of Alverstone Road. Whippingham has a Community Partnership which has existed for a fairly short time and which consists of representatives from local Community Groups and Organisations, the Business Sector and the County Council elected members for the Division. I was given the documents relating to the Community Partnership including its Constitution and a recent Newsletter[2]. The Community Partnership has a budget of 2p per head per annum and the expenditure was controlled by the Partnership Committee based on a 5 year plan.

1.6 The fourth and final area of Whippingham Village lies on Folly Road which runs via several doglegs from a point on Whippingham Road approximately oppoSite the junction with Alverstone Road down to the wellknown Public House on the side on the River Medina “The Folly Inn”. This fourth area is a Mobile Home Park called in fact ‘The Medina Park Mobile Home Site’. Apparently, although it is a Mobile Home Site, it is one of those sites where people can and do live there throughout the year.

1.7 The Site with which I am concerned in this Application is within the Ecclesiastical Parish of Whippingham as are all the other parts of the Village which I have mentioned. It is not however within Whippingham Heights but lies on the other side of the Whippingham Road and a little to the North of Whippingham Heights Estate. It is however within the view and earshot of large parts of the Whippingham Heights Estate. Directly oppoSite the Whippingham Heights Estate is an agricultural field.

2.0 THE LEGISLATION

2.1 Section 13 of the Commons Registration Act 1965 (“the 1965 Act”) requires the Isle of Wight Council (“the Council”) as a Commons Registration Authority to make an appropriate amendment to the Statutory Register where “any land becomes . . . . a Town or Village Green.” Section 22 (1) of the 1965 Act has three limbs, namely (A) a Green created by Statute, (B) a Green created by custom and (C) a Green created by prescription. The present Application relies on the third limb ie. a Prescriptive Green.

2.2 Section 22 of the 1965 Act originally defined a “Town or Village Green” (a “VG”) as “land . . . . . on which the inhabitants of any locality have indulged in lawful sports and pastimes as a right for not less than 20 years”.

2.3 Section 98 of the Countryside and Rights of Way Act 2000 (“the 2000 Act”) amends Section 22 of the 1965 Act so that land can now become a VG if

“it is land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as a right and either (a) continue to do so, or (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions”.

2.4 The amended definition came into force on the 30^th January 2001. At that date the 20 year period of qualifying user had not expired (according to the Application, the period of user expired on the date of the Application namely the 21^st June 2002), but since the start date was said to be June, 1981 the actual 20 year period is to June 2001, and continuing until June 2002.

2.5 Where the claimed period of qualifying user does not expire contemporaneously with the making of the Application for Registration then the user must continue after the 20 year period has expired and up to and until the date of the Application: see the Judgement of Lightman J in Oxfordshire County Council –v- Oxford City Council and Robinson (“Oxfordshire”) [2004] EWHC 12 (CH at para. 66).

2.6 An Applicant can properly choose as the qualifying period the 20 year period leading up to the making of the Application; see “Oxfordshire” para.71.

3.0 THE CONSEQUENCES OF REGISTRATION

3.1 These have been described Judicially as “no trivial matter for a land owner”; see RV Suffolk County Council ex parte Steed (“Steed”) [1996] 75 P&CR 102 at 111[3].

3.2 The consequences are serious because Registration is conclusive evidence of the land being a VG as at the date of Registration (Section 10 of the 1965 Act)[4] and land which is a VG:

3,2,1 Is subject to rights to indulge in lawful sports and pastimes which are vested in the inhabitants of the relevant locality or neighbourhood;

3.2.2 Is within the scope of Section 12 of The Inclosure Act 1857 and Section 29 of The Commons Act 1876 which make it a criminal offence to build or do anything on the land other than with a view to its better enjoyment as a Green;

3.2.3 can only cease to be a Green by the operation of some Statutory Provision. See: Oxfordshire at paras. 36 – 43, 46 – 49 and 14.

3.3 Because the consequences are serious the Courts have consistently held that the requirements of the 1965 Act must be properly and strictly proved by evidence. See: R(Beresford) The City of Sunderland (“Beresford”) [2003] UKHL 60 at paras. 2 and 92[5].

4.0 THE APPLICATION

4.1 Although the Application in the Applicant’s Bundle is in draft form[6], it is agreed that the Application was in fact made in the same form on the 21^st June 2002. Part 3 of Form 30 (the Pro Forma for making such Applications) specifies the land the subject of the Application as “the field or the old Allotment” and the locality as “Whippingham” and as bounded by the green line on the plan[7].

4.2 Part 4 alleges that the land became a VG in 2001. Part 5 alleged that the land became a VG by use for lawful sports and pastimes as of right for not less than 20 years. Accompanying the Application, and in addition to the Site plan, was a plan allegedly marking the locality of Whippingham[8]. There was a further plan of the field[9] which contained a brown rectangle against which was the following text: “containing boundary of Allotments as at 1981. The remaining 12 Allotments were not grouped closely together. Allotment areas in use are excluded from the Application to create a Village Green”. So it appears that the Applicant sought to exclude from the Application to Register the land within the green line an area of land contained within the brown rectangle and representing 12 notional Allotments.

4.3 I gave Directions in this matter on December 4^th, 2003. By 7.7 of those Directions the Applicant was to file a map marked to show the boundaries of the Application land. That map[10] is of the whole area bounded by the green line. In the letter accompanying the Application[11] which the Applicant asks to be read with Form 30[12] it appears that the Application is for Registration of the field bounded in green less an area representing the 12 Allotments still under cultivation in 1981.

4.4 Oxfordshire (paras. 82 – 91) is authority for the existence of a power in the Registration Authority to Register a lesser area than the area the subject of the Registration Application, providing that such Registration does not cause any prejudice to a third party and most particularly the land owner. However, such jurisdiction can only be exercised in respect of land which has (a) been made the subject of the Application and (b) proved to have been subject to the required user; see Oxfordshire para. 83. In my view, Oxfordshire is not authority for the proposition that a Registration Authority can Register more land than is included in the Application or any land which has not been proved to satisfy the definition of a VG.

4.5 I shall have to consider this matter with great care when I come to make Findings about the existence of Allotments after the date of commencement of user.

4.6 It is important to note at this stage that the Council does not have to see evidence of user of every square inch of the Site throughout the user period, but it must have evidence and be persuaded that for all practical purposes it can sensibly be said that the whole of the Site has been so used for the relevant period: see: R (Cheltenham Builders Ltd) –v- South Gloucestershire Council I”Cheltenham”) [2003] EWHC 2803 at para. 29[13].

4.7 It is also important to note that the Applicant bears the burden of proof in this respect. He must establish on the balance of probabilities that substantially the whole claimed VG (and not merely a part or parts) was used for lawful sports and pastimes throughout the period relied on: “Cheltenham para 29, Oxfordshire para. 93”.

4.8 The matter therefore falls to be decided in stages. The first question is whether any substantial part or parts of the land the subject of the Application have or have not been used throughout the user period. The second stage arises if it is found that any part or parts of the Application land have not been so used (whether by reason of their physical character or user by others or otherwise) then those parts may not become a VG and may not be Registered as such. The third stage of the process is then to enquire whether the remainder of the Application Land may be Registered excluding the part or parts not used. Those parts must be properly identified.

4.9 In this case Mr Taylor seeks to exclude from his Application any land still under cultivation as an Allotment at the beginning of the Registration period. That is a proper approach because land that was cultivated by an Allotment Holder could not be enjoyed for lawful sports and pastimes by local residents at the same time. However, the question for the Council’s decision here is, whether the exact area of each Allotment must be identified and excluded separately (since the Allotments may well not adjoin one another) or whether it is sufficient for the Applicant to exclude a notional area covering the number of Allotments under cultivation but which may well not correspond to the actual plots under cultivation because it groups them together when they were apart. That is a matter to which I shall return later.

5.0 THE APPLICANT

5.1 The Applicant is Mr Brian Taylor who lives at 1 Matthews Cottage, Barton Manor Cottages, Whippingham. He has lived there with his family since September 1987 and for 10 years prior to that lived at East Cowes. He was a teacher at a school in Newport until 1990 and now does a variety of consultancy work on the Isle of Wight. He gave extensive evidence during the course of the Enquiry and I analyse that evidence later in this Report.

6,0 THE APPLICATION SITE

6.1 The Application Site is a field of approximately 2.2 hectares adjoining Osborne Works Site at Whippingham. It has been owned by the Objector GKN or its predecessor since the 1940’s. Although I have rejected the aerial photograph[14] of the Site for other purposes I accept and Find that it is clearly depicted as lying immediately to the South or South East of Osborne Works Site and has a boundary to Whippingham Road of approximately 115 metres.

6.2 The evidence shows that the Site consists of poor quality agricultural land on which various attempts at cultivation have been made over the years. It is now down to rye grass which is cut once a year for hay. Its Eastern boundary is to Whippingham Road. Its Northern boundary is to Osborne Works. Its Western boundary is to another field which has been called “The Lower Field” or “The Pony Field”. The reason for the latter appellation is that Pony Camps have been held there each Summer for a number of years. Its Southern boundary is to another field under cultivation and there is a public footpath which runs from the South East corner of the Site along its Southern boundary and the boundary of the Lower Field until it meets Beatrice Avenue where the latter road turns through approximately 90º.

6.3 There is a security fence between the Site and the Osborne Works Site and hedges and fences along the remaining boundaries. There is an access to the Site from Whippingham Road approximately in the middle of its boundary and there is a track which crosses the Site from East to West centrally. The gate at Whippingham Road is a five barred farm gate. At the South East corner of the Site the public footpath runs outside the hedge and there is a stile for pedestrians to enter the footpath from Whippingham Road.

6.4 Immediately behind Osborne Works is an area which is given over to ball games and in particular to football. On the opposite side of Beatrice Avenue from the Pony Field is another field called the Gymkhana Field or “George’s Field”. That field is owned by the Pony Club which camps in the lower field each Summer. There is a row of conifers planted in the 1980’s along the Whippingham Road boundary and which can be identified from the photographs accompanying exhibit C to the Applicant’s Application[15].

7.0 THE OSBORNE WORKS SITE

7.1 Cowes is of course famous for the development and construction of Hovercraft. The owners of the Facility at East Cowes and the Osborne Works Site have been successively The British Hovercraft Corporation, Westlands and then GKN. The main Construction Site is at East Cowes. The Osborne Works Site was and is for Research and Development and for the testing of materials for use in the construction of Hovercraft. In particular, the rubber ‘Skirt’ which inflates as the Hovercraft rises was tested at the Osborne Works Site over a long time.

7.2 In order to test the strength and durability of the Skirt’s material a number of Flagellation Rigs were set up along the boundary between the Osborne Works Site and the Application Site. These Rigs were designed to replicate the conditions the material would experience in use on a Hovercraft and so that the material might be subject to the same high speed airflow, water spray and spray from other chemicals eg. fuel and oil. The evidence points to 3 Rigs being set up and their importance in the context of this Application is that the airflow and spray etc. was directed towards the Application Site. Although the use of these Rigs varied over the years, it is the Case of GKN that when in operation it would be impossible or at least very unlikely that anyone would walk on the Application Site within the range of the airflow and spray.

8.0 THE OBJECTOR

8.1 The Objector is GKN Aerospace Services Limited (GKN) who owns the Application Site and the adjacent Osborne Works Site. Both the Osborne Works Site and the Application Site have been owned by GKN or its predecessor since the 1940’s. GKN also have a Facility at East Cowes. The Applicant was concerned about the ownership of the Site and the Osborne Works Site. He sought disclosure of the documents of Title prior to the Enquiry but it soon emerged that nothing turned on the changes of ownership of the Site and the adjacent Osborne Works Site over the years. There appears to have been a continuity of activity at Osborne Works regardless of who the current owner was.

9.0 PLANNING MATTERS

9.1 Mr Deeming dealt with these in the course of his evidence which I shall review later. For the moment, I can say that the Planning status of the land according to the Isle of Wight Council’s Unitary Development Plan (UDP) which was formally adopted by the Council on the 18^th May 2001 identifies the Site as employment land suitable for high quality uses within Classes B1, B2 and B8. Mr Deeming dealt with the Planning history of the land and I can say now that there is an Application before the Council to use a small section of the Site adjoining the Osborne Works Site as a Trailer Park.

10.0 PROCEDURAL MATTERS

10.1 It will probably be helpful if I set out the chronology of this Application and how it came to be dealt with.

Chronology

Date	Event
21.06.2002	The Application is lodged with the Council
11.2002	The Application is advertised
12.11.2002	The Council write to GKN
17.12.2002	Wragge & Co for GKN write to the Council lodging formal objection to Registration[16].
17.02.2003	Applicant writes to Wragg & Co seeking confirmation that GKN Aerospace Services Limited are the sole owners of the Site[17].
31.03.2003	Council write to Applicant enclosed Draft Officers’ Report and asking for comments thereon[18].
09.04.2003	Wragge & Co write to the Council stating they have further relevant information and seeking a deferment of the Determination. Also saying Applicant filed further information in January 2003 which they have not seen[19].
10.04.2003	Council write to Applicant stating that Chairman of Regulatory Committee has decided to defer consideration of the Application for several weeks[20].
11.04.2003	Meeting of Regulatory Appeals Committee. Officers Report recommend Acceptance on basis of information then available[21].
09.06.2003	Council write to Applicant and referred to his letters dated 29^th and 31^st May 2003 (not in Bundle). The Letter appears to be an explanation of the Decision to defer the Determination[22].
21.07.2003	Following Decision by Council to hold a non-Statutory Enquiry I was appointed Inspector.
08.10.2003	Following difficulty over fixing dates for the Enquiry Wragge & Co write to me asking me to postpone the Enquiry from the dates I have provisionally set ie. January 5^th- 7^th, 2004, on the ground that Counsel of their choice was not then available.
04.12.2003	I gave written reasons for refusing the Adjournment and written Directions.
05.12.2003	I held a Directions meeting at Whippingham Community Hall. Mr Lawrence QC represented the Objectors. The Applicant appeared in person. I slightly modified the Directions given in writing on the previous day. Mr Lawrence QC told me that he was instructed not to pursue the Application for an Adjournment.
10.12.2003	Mr Lawrence QC supplies me with a written note requesting an Adjournment on the ground that the Judgement of Lightman, J in Oxford would not be available by January 5^th ,2004 I decided to proceed nonetheless.
05-08.01.2004	I held the Enquiry at Whippingham Community Hall and on 06.01.2004 held an Evening Session at County Hall, Newport.
23.01.2004	I was supplied with a copy of Lightman, J’s Judgement in Oxford.
09.02.2004	I was supplied with a copy of the Order in Oxford.
17.02.2004	I wrote to the Council outlining the Directions I had given on 05.12.2003 and indicating that I was not minded to re-open the Enquiry following the Judgement in Oxford but that I would listen to any Application to the contrary. None was made. I also gave Directions as to the Filing of Closing Submissions.
03.03.2004	Objector’s Closing Submissions received (42pps + Authorities).
24.03.2004	Applicant’s Written Submissions received (approx. 80pps). These Submissions appear to introduce new evidence and to attack the integrity of the Objector’s evidence in a way not put forward at the Enquiry.
02.04.2004	Wragge & Co write a letter with 2 Appendices in reply to the Applicant’s Closing Submissions[23].
21.04.2004	Applicant writes letter in response to Objector’s reply and dealing with points raised[24].
23.04.2004	Objector’s final letter replying to Applicant’s Response[25].
30.06.2004	My Report

10.2 Although strictly outside the ambit of my Enquiry the Applicant complains of a number of matters on which I should comment. Firstly that there appears to be a substantial delay between the making of the Application and it being advertised. I cannot comment on this. Secondly that GKN were late in lodging their initial Objection. Thirdly, that GKN secured a deferment of the Determination without proper notice to the Applicant and without him being given an opportunity to respond. I do not know, but strongly suspect, that the reason the Applicant objected to the Deferment was because he had seen the Officers Report which recommended acceptance of the Application on the information then available.

10.3 I must however comment that in the light of the complexity of the issues raised by the Application and the Objection it does not surprise me in the least that the decision to defer was taken or that a decision was taken subsequently to hold a non-Statutory Enquiry. In the case of VG Applications, the Council has a discretion whether to hold an Oral Hearing before accepting or rejecting the Application. In this case the Council decided to convene a non-Statutory Enquiry (as is now normal in such cases) and appoint an Inspector to conduct the Enquiry and report. However, the duty remains with the Council to decide whether to accept or reject the Application (Regulation 8 (1) of the Commons Registration (New Land) Regulations 1969), which will constitute the “Final Disposal” of the Application (Regulation 3 (7) D).

10.4 From the chronology it can be seen that as at the date when the Enquiry began the Judgement in Oxford was not available. However, I gave each Party an opportunity to apply to re-open the Enquiry in the light of that Judgement but neither Party wished so to do. I am told and accept that an Appeal is proceeding in Oxford to the House of Lords via the Leapfrog Procedure and that after the Appeal decision it is likely that the matter will be referred back to the Inspector in that case for further determination. This was referred to by Wragge & Co in Appendix 1 to their letter of 2^nd April 2004[26].

10.5 My Advice to the Council is not to defer Determination of this Application pending receipt of any Appeal Judgement because it is not clear whether the Appeal will proceed, and if it does whether it will be determined on all grounds or simply on procedural points which may have no bearing on the present Application. Clearly, this is a rapidly revolving area of Law and it would be unfair to both Parties to defer consideration of this Application yet further and for an uncertain length of time.

10.6 At the Enquiry the Applicant represented himself. Miss Crail of Counsel appeared for GKN. A number of local residents spoke after each side had presented its Case and I have analysed their statements in the appropriate Section of this Report. In view of the fact that the Enquiry took one day longer than was originally allowed and the fact that the decision in Oxford was awaited I decided to defer Closing Submissions until the position had become clearer.

11.0 THE STATUS OF THIS REPORT

11.1 The duty of reaching a decision upon this Application rests with the Council as Registration Authority. It is not a duty that the Council can delegate to an outsider. The decision making process must be fair and be seen to be fairl both procedurally and in substance. As an Inspector reporting on a non-Statutory Enquiry I am not adjudicating upon the Application, although I anticipate that the Council will consider my Recommendation carefully and attach weight to it. However, the Council will remain free to make its own decision on the various matters of fact and Law which arise. It will be free to take other legal advice if it so wishes before reaching its decision. If it decides to accept my Recommendation then its stated reasons for doing so should be the reasons expressed in this Report. If it so wishes, it is free to refer back to me on any point upon which it seeks further assistance.

11.2 In order to achieve procedural and substantive fairness in its determination I Advise the Council:

11.2.1 That it should have available not only my Report but also the documents before the Enquiry ie. the various Bundles and Documents produced during the course of the Enquiry[27];

11.2.2 Since the Parties Written Submissions on the evidence form part of the material before the Enquiry the Council should also have those Submissions. I have appended them to this Report[28];

11.2.3 The Council may wish to have a view of the Site before reaching its decision. That is entirely a matter for the Council. I offer no Advice one way or the other. However, if the Council does decide to hold a view then the Parties should be informed and given an opportunity to attend;

11.2.4 The Council should be careful not to allow extraneous matters to affect its decision. Some Councillors may have local knowledge or may have received directly or indirectly information and/or representations from their constituents. They should avoid being affected by such matters if possible, and certainly avoid being affected by them without giving each Party any opportunity to make further representations thereon;

11.2.5 If they propose to give more weight than I am prepared to give to certain parts of the evidence eg. the aerial photographs, then they should also give each Party an opportunity to make representations. As it is, I strongly Advise against giving extra weight to such material and for the reasons I have express later in this Report.

12.0 THE CLAIMED LOCALITY OR NEIGHBOURHOOD

12.1 In his Application the Applicant referred to the locality as “Whippingham”. In his evidence he asked me to consider Whippingham Polling District as a locality or Whippingham Heights Estate as a neighbourhood within a locality. A “locality” must be an area known to and recognised by the Law: see: Cheltenham para. 72[29]. That includes Ecclesiastical Parishes as well as Administrative Divisions: see: R (Laing Homes) –v- Buckinghamshire County Council (“Laing”) [2003] EWHC 1578 at para. 151[30]. A “neighbourhood” need not be a legally recognised area but must connote something more than a place or geographical area – rather, a distinct and identifiable community, such as might reasonably lay claim to a Town or Village Green as a right: see: Steed at p501[31].

12.2 GKN accept that the Ecclesiastical Parish of Whippingham would constitute a locality in Law. There is a letter from the Rector of Whippingham[32] enclosing a map of the Whippingham Ecclesiastical Parish as at January 2004. Both the Application Site and Osborne Works Site are within the Ecclesiastical Parish. There is no evidence that the boundaries of the Ecclesiastical Parish changed during the user period and I assume that if the boundaries had changed I would have heard evidence of that from GKN. I shall assume that the Ecclesiastical Parish boundaries remained constant throughout the period.

12.3 An attempt was made by the Applicant to mount an alternative Case based on the Osborne Electoral Ward or the Whippingham Polling District. There is evidence that the Osborne Electoral Ward from 1991 onwards[33] but it appears to me that the boundaries of that Electoral Ward may have changed where it adjoins East Cowes at the latter end of the period and I am not prepared to Find on the evidence that the Osborne Electoral Ward existed before 1991, or if it did, that its boundaries did not alter between 1981 and 1991. Equally, and for the same reason I am not prepared to make any Finding based on the Whippingham Polling District plan[34].

12.4 In his Final Submission the Applicant mentioned a Circular from the Department for Environment, Food and Rural Affairs (DETR Circular O4/2001-Countryside and Rights of Way 2000)[35]. In paragraph 80 of that Circular guidance for Registration Authorities purports to be given on the new definition “Locality or Neighbourhood within a Locality”. The paragraph reads:

“80. Under the first part of the Revised Definition the land will be regarded as a Village Green provided that it is land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right. The implications of this are that the Commons Registration Authority will need to be satisfied only that a significant number of local inhabitants have used the land in a qualifying manner. Use by people not from the locality will therefore be irrelevant. Furthermore, use of the words “. . . . any locality, or neighbourhood within a locality . . . .” is intended to clarify that a locality does not necessarily equate to an Administrative area, eg. an entire Parish, but rather to a suitable area which the land in question might reasonably be expected to serve as a Green.”

12.5 Relying on this, the Applicant says that in order to qualify as a “Locality” a distinct Administrative area does not need to be identified but simply that a suitable area must be identified and the land the subject of the Application must reasonably be expected to serve as a Village Green for that area. Further, the sentence in that paragraph beginning: “The implications of this are . . . .” means that it is unnecessary for him to establish that the predominant user of the Site was by the inhabitants of the relevant locality or neighbourhood within a locality as the case may be. In other words, even if the majority of the users came from elsewhere, the definition would be satisfied if a substantial number of local residents also used it.

12.6 This argument was deployed by the Applicant in his outline Legal Submissions provided prior to the Enquiry[36]. It was challenged by Counsel for GKN in her Closing Submissions[37] and in her Reply to the Applicant’s Closing Submissions[38] she accepted that the DETR Circular contained the passages quoted but submitted that such Departmental guidance does not provide nor purport to provide an Authoritative interpretation of a Statute, which is a matter for the Courts. She pointed out that in Cheltenham[39] Sullivan, J held that “locality” could only include an area known to the Law ie. Administratively recognised and that an Ecclesiastical Parish as well as an Administrative Division would qualify: “Laing”[40]. She also Submitted that insofar as the DETR Circular may have indicated that predominant user need not be by people from the locality or neighbourhood provided only that a substantial number of such people did use the Site in question then it was wrong. She relied on the Judgement of Lord Hoffman in RV Oxfordshire County Council ex parte Sunningwell Parish Council (“Sunningwell”) [2000] AC 335[41]. In that Case, Lord Hoffman had assumed without deciding the point that proof of user in a claim to Register a Class C Green (which this is) must be similar to that which would establish a Class B Green ie. by Customary Right.

12.7 In the case of a Class B Green it was clearly necessary to establish that the predominant user was by local inhabitants and that had been established in the 19^th Century: see: Hammerton –v- Honey [1876] 24 WR 603. Accordingly, she Submitted that the 1965 Act did not intend to depart from the historical use of the concept of a “Green” so as to include in the definition land more properly described as a “public open space” ie. available to all the World who chose to come. The purpose of the introduction of the new Class of Village Green ie. Class C in 1965 was simply to prevent land owners from relying on any defence to an Application to Register a Class B Green that the custom could not have existed in 1189: see: the Judgement of Lord Hoffman in Sunningwell at page 353[42]. Accordingly, Miss Crail Submitted that Lord Hoffman’s assumption must be correct and that to satisfy the Section 22 Definition user must be predominantly by the inhabitants of a single locality (or, now, the single neighbourhood within a locality) in order to preserve the link between a Green and the particular community to which it belongs. Any other construction would destroy what had hitherto been the requirement of an intimate link between the alleged Green and the community it was said to serve.

12.8 To my mind, it is noteworthy that the DETR Circular paragraph 80[43] does not seek to distinguish between a “locality” and “a neighbourhood within a locality”. Moreover, the words “. . . is intented to clarify . . .” are preceded by the words “. . . any locality, or neighbourhood within a locality . . .”, and I think the rather loose use of language at that point is an indication that the Department regards the second part of the Definition ie. “a neighbourhood within a locality” as being satisfied where a suitable area is identified which the land in question might reasonably be expected to serve as a Green. Any other construction would be contrary to the Decisions I have mentioned and which are to be preferred. In any event, I accept as authoritative the Statement by Sullivan, J in Cheltenham[44] that the Registration Authority has to be satisfied that the area alleged to be a “neighbourhood” has a sufficient degree of cohesiveness in order to qualify. I shall deal later with my Findings and Conclusion on this point.

12.9 So far as predominant user is concerned I find myself in agreement with the Submissions made on behalf of GKN. In my opinion, and based on the Authorities which I have quoted, it is necessary for the Applicant to prove not only that a substantial number of residents of the locality or neighbourhood within a locality have used the Site in the required manner and over the required period but also that during that same period the predominant user must have been by such residents. I will deal with my Findings on this aspect later in this Report.

13.0 THE SITE VISIT

13.1 On the first morning of the Enquiry ie. January 5^th, 2004 I held an accompanied Site Visit after I had formally opened the Enquiry. During that visit I inspected the Site noted the features which the Parties invited me to note and observed Flagellation Rig Number 29 in operation, it being operated by Mr Michael Marlow, and listened to his explanation of the working of the Rig. At 11am on that day the weather was damp with drizzle. There was a light South West wind with occasional gusts.

13.2 I noted that the Flagellation Rig was 7.3 metres removed from the boundary with the Site and that the spray from the nozzle penetrated to 15 metres inside the Site. When I stood at that distance from the boundary I could sense the spray and air movement but was not discomforted thereby or by the noise from the Rig. I observed two shrubs within the arc of the spray which did not appear to be severely damaged. There was a seat to the West of the Rig within the boundary of Osborne Works and within the apparent arc of the spray. I noted the first floor office windows in the office block which appeared to give a good view over the Site.

13.3 I noted the Whippingham Road gate which was approximately 3.7 metres in length and that there was a 2.7 metre distance between the hinge of that gate and the nearest tree. The hinge was rusty and pointing outwards. I noted the central track across which there were some strands of heavily rusted barbed wire at the Western end ie. close to where the pigsties would once have been. There was an unkempt hedge containing brambles and other vegetation between the far end of the central track and the North West corner of the Site on the Osborne Works boundary. I noted water pipes at intervals along the central track which I was told once served the Allotments.

13.4 There were various informal tracks leading off the central path and in particular one approximately 2/3rds of the way along which led towards the Southern boundary but did not reach it. I also noted various metal work pieces, pipe work and fencing in the vicinity of the centre of the track but to the Northern side which I was told were the last remaining remnants of the pigsties. I also observed and noted the post and fencing in the South East corner of the Site. I observed that the Site itself was uneven and contained numerous bumps and hollows. There was vegetation in the form of low coarse grass with brambles and weeds growing through it on both sides of the track.

13.5 In the course of that Inspection I also went into the lower field and looked at the Beatrice Avenue entrance to the lower field, upon which I have commented elsewhere in this Report. I also walked part of the public footpath immediately to the South of the Site.

14.0 OUTLINE OF RELEVANT ISSUES

14.1 It seems to me that an analysis of the Authorities shows that there are really six separate matters which must be addressed on an Application to Register a Class C Green. I note that in Steed they were reduced to four but it seems to me that this was because certain matters were not in dispute in that Case. The six ingredients are:

14.1.1 Has there been use of the land the subject matter of the Application to Register?

14.1.2 Has such use been as of Right?

14.1.3 Has such use been for lawful sports and pastimes?

14.1.4 Has such use been by a significant number of the inhabitants of a locality or neighbourhood within a locality?

14.1.5 Has such use continued for 20 years?

14.1.6 Has such use continued until the date of the Application for Registration?

14.2 I shall address each such issue in turn but before doing so I shall consider the evidence (both written and oral) adduced at the Enquiry and then reach certain Findings of Fact based thereon.

15.0 THE EVIDENCE FOR THE APPLICANT

Introductory

15.1 The Applicant gave evidence himself and called a further 14 witnesses in support of his Case. In addition, he submitted a number of written statements and questionnaires from a number of other persons who he did not call. Further, at the conclusion of the Respondent’s case I permitted any interested persons who wished to make statements to the Enquiry to do so. The Applicant and his witnesses were all cross examined in detail by Mrs Crail for GKN. Some of the interested persons who made statements at the end of the Enquiry had submitted statements and/or questionnaires to the Applicant although none of them were called by him to give evidence. I must treat such statements and the written evidence not subject to cross examination with a degree of caution.

15.2 Helpfully, the Applicant divided his evidence into three categories which he set out in the index at the beginning of his Bundle. The first section consisted of the statements/questionnaires of 18 persons who he proposed to call subject to time and progress of the Enquiry. These were all people who the Applicant said had used the land and supported his Application. Of these 18 persons he called the following:

§ Mrs R Adams

§ Mr M Cox

§ Mr R Hewitt

§ Mrs J Lambert-Allen

§ Mr G Marlow

§ Mrs C Targett (formerly Miss Pymont)

§ Mr W Allcock

§ Mr S Darlaston-Jones

§ Mr A Import

§ Mr B Taylor (the Applicant)

15.3 In addition he called Mrs A Hewitt, the wife of Mr R Hewitt, who had not previously submitted a written statement, but had supplied a questionnaire[45].

15.4 The next Section of his Evidence consisted of 7 persons who the Applicant claimed were experts or had specialist knowledge of the matters the subject of the Enquiry. Of these 7 the Applicant called the following:

§ Dr D Fryer

§ Mr A Pugh-Panther

§ Mr D Hames

§ Mr K Newnham

15.5 Finally, the Applicant submitted a list of 33 persons who had furnished questionnaires and/or statements but who he was not proposing to call as witnesses. To these 33 names a further name was added during the Enquiry namely Mr Fisher. Of these 34 persons 5 made statements at the conclusion of the Enquiry as Interested Persons. They were:

§ Mrs B Le Goff

§ Mr P Legge

§ Mrs J Merry

§ Mr A Allen

§ Mrs J Busby

15.6 In addition, the following persons also made statements:

§ Mrs G Taylor

§ Mrs Luckett

§ Mrs Collins

§ Mr R Norris

§ Mrs J Tapgood

§ Mr G Targett

15.7 I shall review in detail the evidence of the five witnesses individually and the effect of the written evidence collectively. I shall take the witnesses in the order in which they were called. I shall also mention subject to the reservation I have already made the statements made by the Interested Persons.

15.7.1 Mr David Hames

15.7.1.1 He submitted a letter.[46]

15.7.1.2 Mr Hames was Secretary of the BHC Horticultural Society between 1976 and 1988 when he retired. He said that following the very hot Summer of 1976 there was a potato shortage and employees of BHC (as it then was) were keen to grow their own crop. The company offered the use of the Site for Allotments. He thought that approximately 100 plots were created and each plot measured 66 feet x 22 feet. The plots were equally spaced on each side of the track which ran down the centre of the site. Pathways between the Allotments were created at right angles to the central track. He thought that approximately half the total Site was covered with Allotments but that they did not continue as far as the pigsties at the far end of the Site. He did not remember any pathways around the edge of the Site. Access to the Site was limited because of the pig farm at the far end and Allotment Holders were never given a key to the main gate at Whippingham Road. Cars had to be parked off the track outside the Site and at the far end from the main Work’s Building.

15.7.1.3 He said that he himself never kept an Allotment and left it to others to manage their own. He was Secretary of the Horticultural Society from 1960 to 1988 and the Allotments were just one activity of the Horticultural Society. He kept a register of Allotment Holders and a plan of the plots they occupied but his records were destroyed when he retired in 1988.

15.7.1.4 The first growing season was 1977 and the Company arranged for the Site to be ploughed before the Allotment Holders moved in. Some of the Allotments near Whippingham Road were unusable because there was a lot of gravel in the subsoil at that end and the plots were liable to flooding. Further the surface soil was of insufficient depth and it proved impossible to cultivate these Allotments.

15.7.1.5 Importantly, he said that enthusiasm for the Allotments amongst BHC employees waned and the scheme died in the early 80’s. Initially, and in chief, he thought the scheme died by about 1983. By then the number of Allotment Holders had fallen to about 12 who occupied different plots in different locations. When cross examined about this he said 12 was an estimate, certainly not more, but he could not remember the names of the remaining Allotment Holders. They were scattered about the Site rather than collected in one place. When asked to look at the plan in the Red Bundle[47] he thought that the red rectangle which represented the Applicant’s Case as to the location of the remaining Allotments was not accurate and that some of the remaining Allotments were in the area of the piggery.

15.7.1.6 His own Department vacated the Osborne Works Site in 1981 and moved to East Cowes. He was in the Electronics Department which moved entirely to East Cowes and he did not go to the Site after the move in 1981. He said that as Secretary of the Society he was doing a paper exercise and never took any active interest in how the field was being cultivated. He thought, although he could not be sure, that some Allotments may still have been used until 1985 but could not identify who the remaining Allotment Holders were.

15.7.1.7 In his recollection he had no complaints from Allotment Holders about dogs fouling the Site although he had one complaint about pilfering. He said that the Flagellation Rig (to which further reference will be made later) was further down the Site than the Allotments and did not constitute an interference with their use. The Allotment Holders were used to the noise and spray.

15.7.1.8 I found Mr Hames to be an honest witness doing his best to recollect events of 20 years ago. I accept entirely the general picture painted by him of initial enthusiasm for an Allotment scheme which gradually waned over the ensuing years until a time came when there were 12 or fewer Allotments still being cultivated. He told me and I accept, that if people stopped cultivating their Allotment they simply ceased paying their subscription and the land was left to lie fallow. He thought some of the remaining 12 Allotments may have been in the area of the piggeries but was unclear about this and did not attempt to give precise evidence about matters which were clearly beyond his recollection. However, I do not think that I can treat Mr Hames’ evidence as a sound basis for making any Findings as to where the remaining Allotments were and when they were finally given up.

15.7.2 Dr David Fryer

15.7.2.1 He submitted a letter and accompanying notes and diagrams[48]. He also produced his CV.

15.7.2.2 He gave evidence immediately after lunch on the first day of the Enquiry and after I had conducted an accompanied Site visit during the morning of the same day. He was present throughout the Site visit. During the Site visit the remaining Flagellation Rig was operated for my benefit. The purpose of the Flagellation Rigs was to test the material used for Hovercraft skirts etc by spraying with fresh and/or salt water and/or oily water and subjecting it to a high speed airflow from a fan in the same way that it would be subjected to such forces when in use. The Rig was operated by Mr Michael Marlowe when I conducted my Site visit and he gave evidence for GKN. I will review his evidence in due course.

15.7.2.3 On the morning of my visit at 1100 hours there was a light South Westerly wind with a few gusts blowing across the Site and the weather was damp with some drizzle. The Rig apparatus was measured to lie approximately 7.3 metres from the Northern boundary of the Site and into the area of Osborne Works. Dr Fryer’s evidence was directed to the issue of the probable range and area of the Site covered by spray, air turbulence etc when the Flagellation Rigs were in operation.

15.7.2.4 Dr Fryer said that his work concerned the construction of hydro dynamic models and he investigated the effects of fluid flow on structures such as oil rigs, ships etc and the drag on airflow surrounding them. He knew that testing had been carried out on the GKN Site since 1970 although he himself had never done any work for GKN. He was permitted by GKN to conduct various control tests for the purpose of the Enquiry and he shared the information thereby gained with Mr Marlow to whom I have already made reference. He produced estimates of the air velocity in the jet nozzle of the Rig which he said were on the high side because he made a number of conservative assumptions. He wanted to run the Rig under conditions of normal operation in order to verify if possible the predictions he had made. He said that Mr Marlow accepted his airflow measurements without wishing to verify them for himself.

15.7.2.5 Dr Fryer said that he made a number of assumptions against the Applicant’s case in order to simplify the predictions. These assumptions included that no loss of energy from the jet in the flagellation process would occur. That was a wrong assumption because the material was tested to damage if not destruction and if this didn’t happen the test would be invalid. He also thought that running different amounts of water and changing the speed and direction of the flow together with the pressure in the chamber behind the jet would all make a big difference to the results. Extra air pressure came from the ambient air and the further you got from the jet the greater the amplification of the jet’s behaviour.

15.7.2.6 He was directed to the documents in the Objectors Bundle[49] concerned with testing and in particular to page 33 where he agreed that his prediction would be slightly on the high side at 300 if the Rig were run at 285/290 feet per second. In fact, on the occasion of my Site visit the Rig was run at 270-295 feet per second which it appears is the slowest speed at which it could have been run without causing stalling.

15.7.2.7 Dr Fryer’s evidence was directed towards the effect of the operation of the Flagellation Rig in terms of spray etc. He agreed that his prediction did not deal with the effect of noise. He was asked about water droplets in the spray and said that if they were smaller than 15 millimetres he would expect them to travel at the same speed as the air. He predicted that with the nozzle which directed the airflow and spray being 9 feet above ground level the droplets would drop to the ground in three quarter’s of a second. If they were travelling at the axial level of the jet he calculated that with a 300 foot per second air speed the droplets would fall to the ground 50 feet from the nozzle. He said at 25 feet from the nozzle 90% of the air in motion was drawn from the ambient atmosphere and only 10% through the nozzle. In consequence, conditions in the ambient air were therefore more important than in respect of the air drawn through the nozzle. In other words, the nozzle did not make a whole lot of different at that distance. He sad that the machine was designed to run at a standard speed, that it was a basic machine and that the pressure behind the nozzle produced the jet. It seemed to me that this evidence was consistent more or less with the schedule produced by Dr Fryer[50].

15.7.2.8 In my view Dr Fryer’s evidence was consistent with my own observation of the Rig in operation. In the climatic conditions then prevailing I measured the limit of the range of the spray to be 15 metres from the boundary and I observed two shrubs lying within the arc of the spray which did not appear to have been damaged. Equally there was a seat inside the field a little further down towards the piggery end and close to the Northern boundary which was not affected by the operation of the spray. Equally my own observation was consistent with Dr Fryer’s table that at 15 metres from the boundary the airflow was equivalent to no more than a fresh breeze. I accept Dr Fryer’s evidence.

15.7.3 Mr George Marlow

15.7.3.1 He produced a questionnaire[51].

15.7.3.2 He said that he had lived for 5 years at Number 20 Campfield Road, Whittingham Heights and 4 years at Number 7 Campfield Road before that. He said that most people referred to the district as ‘Whippingham Heights’. He agreed that the plan at A12 accurately set out the location and dimensions of the Site which he referred to as ‘the old Allotments’. He said that he had used the Site on almost a daily basis when actually on the Isle of Wight and that he had started blackberrying within a few weeks of his arrival in September 1994. He usually used the Site in the morning and the evening and occasionally during the day. He usually used the Site for dog walking and sometimes took other people with him if he was eg. blackberrying. He described it as a delightful spot where he could observe wildlife including squirrels, hawks and small song birds.

15.7.3.3 It was the only field in the neighbourhood which was not under cultivation. He said that he found flowers and plants there which you couldn’t see anywhere else in the area. He was aware that others living on the Whittingham Heights Estate were doing the same thing as he. He remembered children playing with balls, kites and model aircraft. He had no recollection of ever seeing anyone stop them. He said that the gate to Whittingham Road was always open and had never been locked to his knowledge. At one stage it appeared to have been damaged by a heavy vehicle driving into it and after that it was impossible to close it and lock it. There were gaps in the hedge at the far end with at least 3 openings from the football field. He had never had to force his way across the field there were well worn paths with deep depressions in the ground. There was no difficulty in identifying the pathways because there was no grass growing on them.

15.7.3.4 He had never seen any maintenance work to the boundaries until June 2001 when new fencing was put in. More recently a hedge was sealed off but that was the only maintenance work that he could remember. He was never aware of any signs about ownership of the field and in particular no sign saying “keep out”. He used the pathways which had been trodden to find mushrooms because the grass on what he described as the perimeter path was too long to reveal any that were present.

15.7.3.5 He treated the Site as one single field and wandered where he felt like. If something attracted his attention he went and looked at it. He was not secretive or stealthy and didn’t usually wait until dark to go into the field. He noticed the standpipes which had been used for the purpose of watering the Allotments when they were cultivated, although that was before his time. If he saw people on the GKN side of the fence he said good morning to which they usually replied in the same vein. He had no indication that his presence was unwelcome. He never saw any GKN security staff and none ever stopped him from walking in the field. Occasionally the Flagellation Rig was in use and when it was it didn’t interfere with his use of the field. Indeed, he didn’t need to deviate from the path. He did not change his walking habits whenever the Rig was in operation. Up to approximately 2 to 3 years ago the grass was cut regularly and bundled and then left in the field to decay. He continued to use the field when grass cutting was going on. However, since June 2003 there has been no easy access to the field and he has kept out.

15.7.3.6 In cross examination he said that he was retired and has been since 1994. The estate was referred to as ‘Whippingham Heights’ and consisted of Campfield Road, Barton Close and River View. It is so called because it was the highest spot in Whippingham. The houses were built during the 1960’s, all about the same time over a 2 year period. He acquired his dog in the summer of 1995 and it was now approaching 10 years of age. He remembered one year (approximately 1995) a farmer kept some sheep in the field for a while. The sheep were first put in the left hand side of the field and then on the right hand side when the grass on the left had been cropped. He continued to take his dog into the field when the sheep were present but kept it on a lead and didn’t take it into the half where the sheep then were.

15.7.3.7 There was an electric fence around the half of the field in which the sheep were then kept. He thought that the farmer (Mr Brownrigg) was aware of walkers because he put insulating material on the electric fence to keep them safe. He thought that the fencing was present for a month at most and that it was early in the year. He never saw the farmer. In his time there were no pigs in the field and the piggeries were empty. Until approximately 2 years ago the grass was cut annually, bailed and left in the field. He thought the cutting operation took about one day.

15.7.3.8 To get to the field he would leave his home, cross Whippingham Road, turn right and then enter the field. Usually he left the field by the same route but occasionally took a different route. Usually however he left through the main gate. He might have spent up to one hour at a time in the field on a nice day and 3 to 4 hours if blackberrying. When the weather was not so nice he would only spend half an hour there. He usually used the Western half of the field and this was a consistent pattern from 1994. Mushrooms grew mainly on the left hand side but were spread over the field. He though the grass cutting commenced in 1996. A large section of the ground was covered with brambles but you could get round them without too many problems. The ground underfoot was uneven but wildlife seemed to be used to the presence of humans and was not frightened off.

15.7.3.9 Dealing with the Rig, he said that he wouldn’t stand within 6 feet of it when it was operating and didn’t hang about near it, not closer than 20 to 30 feet. He would only deviate from his normal walking route if the spray was blowing out. Even then, he wouldn’t have to deviate from his normal route by very much. He agreed that the field tended to get water logged in wet weather but that was no problem if he wore Wellington boots he was a walker and there were pathways all over the Isle of Wight. He would go to the field even on days when he had been walking elsewhere for recreation.

15.7.3.10 There were various people from Whippingham Heights that he used to see in the field. He mentioned Mrs Lambert-Allen and others in the hall who he was unable to name. He thought may be a dozen people from Whippingham Heights used the field regularly.

15.7.3.11 The main gate was never locked although it was shut until someone drove a vehicle into it whereafter it could no longer be closed. It was then always open at least 2 to 3 feet. He thought the damage was done in 1995-96 not long after he started walking in the field. He didn’t see the damage occur. The gate was bent in the incident. It was open 2 to 3 feet at the latch end and always on its hinges. One hinge (the bottom one) was broken and still is. There was no maintenance in the field or erection of barbed wire. The adjacent field was used as a Pony Club but ponies were never let loose in the field.

15.7.3.12 There were other gaps in the hedge between the gate and the corner by Beatrice Avenue and these gaps were never repaired to his knowledge. He would have noticed if any work had been done.

15.7.3.13 He was asked about photograph Number 20[52] and observed that the top of the gate was not parallel to the ground. That was because the bottom hinge was broke. He agreed there was a bolt on the right hand side of the gate but that would not engage after the damage. The gate would not close further than 2 feet away from the post.

15.7.3.14 Speaking of Whippingham Heights he said that there were three roads containing about 80 or so houses. There were no shops and no Pubs. Most of the inhabitants were pensioners and there were not many children living there. His postal address was ‘East Cowes’. He thought all the properties were built about the same time. The name ‘Whippingham Heights’ had no official designation and there was no club exclusively associated with the Whippingham Heights Estate.

15.7.3.15 Damage to the gate was done in 1995 or 1996 to the best of his recollection and he never saw anyone trying to rectify it. Prior to that the gate was normally closed but not locked. He would then have to open and shut the gate to get in and out of the field. He thought the grass cutting ended about 2 to 3 years ago and there was just one cut per year.

15.7.3.16 I make the following observations on Mr Marlow’s evidence. He arrived at Whippingham Heights in September 1994. In 1995 or 1996 the Site was cleared and reseeded. Accordingly, Mr Marlow would have used the Site in its pre-clearance state for approximately one year. He agreed that prior to its clearance large sections of the Site were covered with brambles and weeds. Further, he agreed that the ground underfoot was uneven. I think the principal use Mr Marlow made of the Site was for the purpose of walking his dog. I accept that he probably picked blackberries and mushrooms when in season, but such activities cover a relatively short part of the year.

15.7.3.17 From his evidence, I get the impression that he largely kept to the pathways which had been trodden and clearly avoided those parts of the field which were overgrown with weeds and brambles. I accept that he would have seen children playing in the field but that must have been after it was cleared and reseeded and it is not clear from Mr Marlow’s evidence how many occasions he observed these activities. Nor is it clear to me on how many occasions he blackberried either on his own or in company with others. In any event, after the field was cleared and reseeded I consider that blackberrying would have been confined to the perimeter hedges.

15.7.3.18 I further observe that since he acquired his dog in the summer of 1995 ie. approximately one year after he arrived at Whippingham Heights it is unlikely I think that he made substantial use of the Site before he got the dog. Accordingly, Mr Marlow’s use of the field prior to its being cleared and reseeded would have been relatively short. I accept his evidence about the gate and the damage to it and the effect that had on the ability of anyone to open or close it. I also accept his evidence about the grass cutting, the keeping of sheep on the field and the operation of the Rig. I also accept that he is a resident of Whippingham Heights.

15.7.3.19 Mr Marlow was recalled to give further evidence on the second day of the Enquiry. He then dealt with factual matters concerning the village of Whippingham. He said that Whippingham Primary School existed for children of primary school age in Whippingham but also took children from Osborne, East Cowes and Wootton. There was another Primary School in East Cowes. Whippingham Post Office was in Alverstone Road and the Post Office and General Store was the only shop in the village. There were two Public Houses in Whippingham namely ‘The Prince of Wales’ and ‘The Folly Inn’ on the riverside. There was another Primary School in East Cowes and the Post Office. That was about 2 miles away. Osborne Middle was the middle school and had a wider catchment area. The Comprehensive School was Newport High and took in children from a wider catchment area still. The Parish Church was Whippingham Parish Church and there was also a church at St James in East Cowes.

15.7.3.20 There was a Neighbourhood Watch Scheme in existence in Whippingham Heights whereby residents carried their neighbours keys and looked and after one another’s interests. There was another Neighbourhood Watch Scheme in existence in Whippingham which covered the area of Alverstone Road.

15.7.3.21 I entirely accept Mr Marlow’s evidence on these factual points.

15.7.4 Mrs Jean Lambert-Allen

15.7.4.1 She supplied a questionnaire[53] and a letter[54]. The letter was undated.

15.7.4.2 She explained that she had lived at Whippingham Heights since 1983. Her first house was at 16 Campfield Road where she lived with her Husband. He died in 1990 or 1991 and she moved in with Mr Allen at 1 River View in 1991. Mr Allen was one of the persons who made a statement at the end of the Enquiry. He also supplied a questionnaire to the Applicant[55].

15.7.4.3 She said she used the field for dog walking at least once and sometimes twice a day. She said that she used the field regularly just before breakfast and after lunch. She entered it through the gate. The gate was usually open and she was never kept out of the field. She never saw any maintenance work carried out either on the fences or the gate. There were no ‘keep out’ signs. She thought the land was owned by the Council.

15.7.4.4 In addition to her regular dog walking she took her grandchildren to play in the field when they visited her from the Mainland. She walked around the perimeter of the field with her dogs and the children would play games of all sorts. She said that she would not stay around the edge of the field but would walk down the middle and what she described as the ‘grassed over’ parts. She remembered seeing the remains of the Allotments which she recalled as being down the middle of the field but just to the left of the central path. At one time she was told by someone from Westlands (as it then was) that the field was owned by them. That was the first she knew of that. She said she saw lots of people walking their dogs. She remembered one lady in particular who had had ME.

15.7.4.5 In addition to people from Whippingham Heights people from East Cowes came to walk in the field and there was she described a ‘social element’. She remembers another lady who used to come for exercise with her daughter who was asthmatic. They would see GKN workers from time to time. In fact she said Mr Allen with whom she had lived since 1991 had been a GKN worker. They were both bereaved and having started talking became friendly and eventually lived together.

15.7.4.6 She never saw any GKN security staff in the field although she had seen them in the company’s offices within the Works themselves. She said those workers she did see made no response to their being in the field other than to chat to the walkers. She said that the security box for entry to the Company Site is now at the new gate whereas previously it had been at the old gate which was 40 yards up the road towards East Cowes and is now fenced in. The security guard would apparently leave people to walk in the field as they wished. She had seen the Flagellation Rig in operation but it didn’t stop her using the field. Spray might be blown about if there was a breeze but you could walk past it without difficulty. She saw cut grass lying in square bales on the field and her grandchildren played in them a few years ago. The bales were damaged. They were broken at the ends and the grandchildren played on and around them. She continued to use the field after the grass cutting had taken place. She ceased using the field since notices went up and it was fenced off. You could get through a hole in the fence but I didn’t like to use the field after notices went up. She never saw anything in front of the Rig which stopped the noise and spray being emitted.

15.7.4.7 In cross examination she said she was a pensioner who had retired in 1981 when she was made redundant. She believed that Whippingham Heights was originally Crown Land and used to be an Artillery Site. The houses were built there in the 1960’s and Campfield Road she thought was built a bit later on in about 1968. She had had several dogs. She brought the first dog to the Isle of Wight with her and she had also had a Jack Russell terrier who had died six weeks before the Enquiry. She had seen foxes and badgers in the field and remembered sheep being kept there for a month in January 1999. She took her dog into the field when the sheep were there but kept it on a lead. There was a fox lair at the end of the field and if she hadn’t kept the dog on the lead apart from worrying the sheep it might have tried to get into the fox lair. She didn’t remember any electric fencing around the sheep although she wouldn’t have taken her dog anywhere near them. She was still using the field twice per day when the sheep were in it.

15.7.4.8 Her pattern of usage had not changed over the years. She agreed that she walked elsewhere on the Island but maintained that she used the field most days. She never saw any pigs on the site. She remembered scrap being burned in 1988 at the top end of the field in the right hand corner far from the Whippingham Road end. When the burning was going on she kept away because of the smoke. She didn’t remember any old flares being burnt in 1990. She thought the grass was only cut once in 1995 or 1996 and definitely remembered seeing the bales in one year only. She said her grandchildren were now aged 9 and 12 and so would have been very young in 1995 or 1996. She thought one of them was 5 or 6. They visited her four to five times per year and stayed during the School Holidays for up to two weeks.

15.7.4.9 There was a footpath around the perimeter of the field and on most occasions she would use that footpath unless meeting up with someone elsewhere. Some people would come through the gaps in the hedge into the field at the bottom end and from Beatrice Avenue. She tended to walk round the perimeter and spend up to an hour in the field at any one time. The top end of the field was very overgrown furthest from the gate in Whippingham Road. She noticed the standpipe and the remains of the old Allotments. Her partner, Mr Allen, told her that he had had an Allotment there in the mid 1970’s for a couple of years. Apparently they had stopped cultivating the Allotments by the 1980’s and by the time she first noticed them they were all overgrown. She thought some users of the field came from East Cowes and some people came up from Beatrice Avenue. She remembered the gate being broken in about 1995 or 1996. In an accident with a vehicle. Prior to them the gate was kept shut with a latch although never locked. After the accident the gate was laid down on the ground and a hinge was broken off. She remembered quite a few openings in the hedge. She herself used one in the South East corner of the field.

15.7.4.10 Mrs Lambert-Allen moved to the Island at some point in 1983. She was therefore one of the persons who would have used the field from an early stage. However, I think that she tended to keep to the perimeter of the field because she described a footpath going around the edge, Equally, I think that the principal use she made of the field was for dog walking and I think that others she saw in the field were doing the same thing ie. walking their dogs around the perimeter. Where the footpath passed the area of the Flagellation Rig it was set 20 feet or so from the perimeter fence. She is I think mistaken in her recollection that the grass was only cut once and I am a little surprised that she made no mention of the complete change in appearance of the land after it was cleared and reseeded. However, I am satisfied that when she speaks of her grandchildren playing in the field she is speaking of a time after that had taken place both because of the presence of bales of grass in the field and because of the ages of her grandchildren. I accept her evidence about remembering the scrap being burned in the top corner of the field in 1988 and, significantly, the fact that she kept away when that operation was going on.

15.7.5 Mr Mervyn Cox

15.7.5.1 He supplied a questionnaire[56].

15.7.5.2 He had lived at 61 Barton Close for 3 years and prior to that for 4 years at Number 11 Campfield Road. Prior to that he lived at East Cowes. He used the field for approximately 20 years. As children they used to play in the field. It was his belief that a John Warn had leased the field from the Council. Mr Warn was the farmer who kept pigs at the far end of the field. As children they came in from the Beatrice Avenue end via the holes in the hedge. There was then virtually no fencing.

15.7.5.3 He now goes to the field 4 to 5 times a week to walk his dogs and in season to pick blackberries and mushrooms. The latter were to be found more to the left of the field where the Allotments had once been. The field was never so overgrown as to be difficult to get around. It was part overgrown with blackberries but not so as to prevent anyone from walking. The way in was never locked or barred. Mr Cox never saw any maintenance work being carried out and certainly no signs indicating ownership or telling members of the public to “keep out”. Anyone in the field would be visible from Osborne Works at all times.

15.7.5.4 He worked for GKN for 28 years from 1973 finishing through ill health in February or March of 2002. He worked mainly at East Cowes but also at the Osborne Works. He remembered the Allotments as being on the left as one went into the field and that there were initially 20 Allotment Holders who gradually gave them up because the quality of the ground was poor. He thought the last Allotment Holder was called Peter Castle who lived in Broadsmith Avenue and he described Mr Castle as ‘fighting a losing battle’. He thought Mr Castle gave up his Allotment about 20 years ago, possibly a little bit less.

15.7.5.5 He remembered other people in the field mainly dog walkers. He recognised a few of them. His own dog didn’t like other dogs so he tended to keep himself to himself. There were other people in the field who he didn’t recognise. He knew the GKN security staff and talked to them on the other side of the hedge. They never said he should not be in the field. He never saw the Flagellation Rig running and was certainly never walking in the field when it did.

15.7.5.6 He was cross examined and said that he had lived at 61 Barton Close for 3 years. Before that he lived for 3 years at Rectory Drive in Wootton. Then before that for 5 years at Number 30 The Mall, Binstead. Prior to that he lived at Haven Street for 4 years. Prior to that at Lushington for 5 years and before that in Campfield Road for 4 years. Before that he lived with his parents at Clarence Road in East Cowes. Accordingly, he had lived at Whippingham Heights since approximately 2001. Prior to that he had not lived there for 16 or 17 years which would relate back to the start of the period of use claimed by the Applicant. He said he was aged 51 and had worked for GKN all his life. He claimed that when he was at Wootton and Lushington he used to walk his dog or pick mushroom in the field on average 4 times per week.

15.7.5.7 When living at Binstead he only came very occasionally. He worked on the maintenance staff at Westlands during the 80’s and 90’s. He had three dogs, all rottweilers. He never saw any livestock in the field, except when a Mr Ken Gill used the back field as a training pitch during a Pony Camp. That was a regular event each summer but it stopped approximately 3 years ago. He remembered Mr Rann cutting grass because he had bought some hay off of Mr Rann for his own horses approximately 4 years ago. He remembered the Pony Club keeping horses in the back field. He couldn’t remember seeing sheep in the field at any time.

15.7.5.8 He remembered pigs being kept in the rear end of the field when he was a teenager 35 to 40 years ago. There were pigsties there which eventually went to ruin. He remembered chicken being kept there also. He thought the sties were dismantled 5 to 10 years ago. He didn’t remember any pigs being in the field during the 1980’s. He didn’t remember any tools being stored in the North West corner of the Site although he could remember things being stored where the football pitch was now situated. He didn’t remember timber being burned or flares being burnt off. He thought he remembered Mr Rann cutting grass in the back field but only once. He certainly only bought hay from Mr Rann on one occasion. He remembered seeing some bales in what he described as the back field. He described the field as containing patches of brambles but that it was always passable. He kept to the edge of the field or walked diagonally across it. He never walked all over it.

15.7.5.9 As a rule he kept to the paths. He didn’t remember the front field ie. the Site being cleared and reseeded but accepted that that must have happened at some time. He described blackberrying as taking place around the perimeter hedges and down through the centre of the field. There were mushrooms where the Allotments had once been. He thought Mr Castle’s Allotment was in the middle on the left of the path about half way along. He knew most of the GKN workers by their first names.

15.7.5.10 He had no recollection of the Flagellation Rig in operation although he had a vague memory of hearing it. His predominant usage of the field was when he was living at Whippingham Heights or when at Lushington. He said while I have been living at Whippingham Heights I use it every day and when I was at Lushington or Wootton I used it 3 or 4 times per week. He would normally gain access to the field through the front gate. There were also two entrances through a Bridle Path at the side of the field by the cropped field. He said there was a chain on the main gate with a padlock but that was never used. You pushed the gate to open it and walk in. He had always used the gate and it had never been locked. He was unaware of the gate ever being locked. He had never had to force an entry or tried to do so. He remembered a gate in the back field which was created when the football pitch was laid out. It was a short cut to Beatrice Avenue.

15.7.5.11 Mr Cox’s use of the field was between 1983 and 1988 and then from 1997 until June 2002. During the intervening 9 years I think he used the field but only very occasionally. I think he used the field principally for exercising his dog and when he did so he kept to the perimeter path or down the middle of the field. I think he did some blackberrying and mushrooming but again I think this was largely confined to the perimeter hedges in the case of blackberrying and the old Allotment sites in the case of mushrooming. I think that most of the other people he encountered in the field were also dog walkers.

15.7.5.12 His memory of the Allotments is consistent with the general picture painted by other witnesses, namely that the Allotments were gradually given up by their Holders until there were only one or two left and those that were left were dotted about the left hand side of the field. It is noteworthy that Mr Cox put Mr Castle giving up his Allotment approximately 20 years ago or more which would take one back to 1984 at the latest. However, I do not think I can rely on Mr Cox’s evidence as to the date on which Mr Castle or any other Allotment Holder gave up his plot. It is also noteworthy that Mr Cox never saw the Flagellation Rig in operation after he started reusing the field regularly in 1997.

15.7.5.13 According to the table supplied by GKN[57] the Rig was operated on some 30 occasions after October 1998 and before August 2002. On each occasion the Rig was run for a minimum of 2 hours and on 4 occasions for 7 hours or more at a time. I am slightly surprised therefore that Mr Cox never noticed the Rig in operation and I think that this is an indication that his use of the field was somewhat limited.

15.7.6 Mr William Allcock

15.7.6.1 He supplied 2 questionnaires[58].

15.7.6.2 He lives at Number 9 Campfield Road where he has lived since February 1981. He used the field for what he called ‘recreational purposes’ ever since then. He mentioned amongst the activities watching wildlife, picking blackberries and mushrooms, dog training and playing with his grandchildren. He used the field 4 to 5 times per week and sometimes every day. He never saw any maintenance work other than ground staff who lopped branches off the Conifers overlooking Whippingham Road if they obstructed people walking on the pavement. He never saw any signs or notices saying “keep out” and has never been barred from the field. He said he used the field openly and from one side to the other. He saw quite a few people in the field but didn’t know them by name. He was never challenged by security staff although he had seen them on numerous occasions. He had seen the Flagellation Rig working but it had never caused him to deviate from his route. He said he gained entry through the main gate by sliding the latch to open it or on occasion the gate was ajar.

15.7.6.3 He looked at the photgraphs[59] Numbers 15 and 16 and identified them as tracks running by the boundary fence. Photograph 13 showed an opening in the hedge and a worn track.

15.7.6.4 He remembers Allotments still being in the field in 1981. He said there were 3 in number. There were 2 on the left hand side as one walked up from the main gate and 3 unused spaces and one Allotment on its own.

15.7.6.5 He remembered the grass being cut after the Site had been cleared and reseeded in 1995 and 1996 and continued to walk the field while it was being cut.

15.7.6.6 He remembered seeing sheep in the field. He remembered coming into the field from the football field side as the electric fence was being laid. He remembered a cycle tire being put over the electric fence to insulate it. Two collie dogs came running up to him as he put his own dog over the wire. He remembered the electric wire being stretched all the way round the hedge next to Osborne Works and he thought the cycle tire was placed over the wire to stop people getting a shock if they stepped over it. There was a vehicle parked containing tools and implements to secure the electric wire around the field.

15.7.6.7 He continued to use the field while sheep were in it and his dog was what he described as ‘steady to sheep’. He kept her to heel and tried to avoid the sheep. He remembered the sheep being gathered in one corner of the fenced in area later the same day and them being rounded up by the collie dogs. His own dog did get a shock from the wire. He went to speak to the men tending the sheep but they didn’t tell him who the owner was.

15.7.6.8 He thought the field was grazed on the left first and then on the right. The left was more productive. He never saw any pigs there during his time although he remembered a break or concrete base near the brambles and weeds. There was corrugated iron sheeting on the ground and a scattering of bricks, timber and plastic. He marked on the plan the location of the piggeries which were on the right hand side of the field and at the far end[60]. He thought that the remains of the concrete base stretched through the brambles towards the central path.

15.7.6.9 He also remembered seeing wildlife in the field.

15.7.6.10 He was cross examined. He had worked in the Prison Service for 30 years, retiring in April 1989. He was employed at Camphill Prison until February 1988 and worked the 8.30am to 5.00pm shift. For the last year of his service he worked at Winchester Prison.

15.7.6.11 Speaking of his dogs he had had a Jack Russell Cross and a Cairn Terrier. In 1981 both his dogs were terriers. He lost his Jack Russell in 1983 when it was aged 14 and the other dog in 1992. He has had other dogs since including an Alsatian. He kept that dog with him at Whippingham during the week and had it from December 1989 until it died in August 2000. He said he normally gained access to the field through the main gate or sometimes used to approach it via the gap in the hedge in the football field. Wildlife was often present in the field when he was walking. He remembered that by the time the electric fencing for the sheep was installed the gate had dropped to one hinge and you had to lift it to close it. He remembered that some people came into the field through a gap in the hedge in one corner. He used to open and close the gate as a matter of courtesy and it was never locked or chained. In fact, it was usually left ajar. He didn’t remember any burning of timber or other waste products in the field.

15.7.6.12 He remembered the field being levelled, harrowed and seeded in 1995 or 1996. Prior to that the field had been covered with brambles to some extent. In particular, he remembered a fixed hedge or row of wild brambles which ran from the central path to the hedge in the left hand corner. The brambles there were thick and prolific. There were also brambles running up the left hand side of the field by the hedge and a large patch to the right of the central patch by the piggeries. There were yet further brambles still on the right hand side of the path and 4 fruit trees which he identified as 2 plum and 2 apple at the far end. There were further patches of brambles in the grass but they did not apparently impede him from walking.

15.7.6.13 After the Allotments had returned to fallow grasses and plants grew and there was a population of field mice, rats and voles. In turn, this attracted birds such as owls to the site. He remembers the grass growing to about 2 foot 6 inches in height. He could remember Mr Rann cutting the grass on the left of the field but not on the right. He remembered him baling it but he didn’t think that Mr Rann cut the grass more than every 2 years. There was Ragwort in clumps on the left hand side of the field and he didn’t think that anyone would want to get Ragwort mixed up in bales of hay which were going to be fed to horses. He had a clear recollection of there being 3 Allotments still in cultivation until the end of May in 1981. They then all appeared to be vacated.

15.7.6.14 He thought that in the last year there was little activity going on. No vegetables were grown except a few potatoes and spring greens. The first 2 Allotments were about 30 yards in on the left hand side of the path and then a gap of 3 or 4 Allotments which had been given up and a further one being cultivated on its own. The long side of the Allotments ranged transversely to the path ie. from the path towards the left hand edge. He said that he walked pass the Flagellation Rig when it was in operation but kept to the path. There were rats about and his dog was fond of chasing them.

15.7.6.15 He said he had two grandchildren a boy of 9 and a girl of 12 who lived at Chillerton. About 5 years ago he flew a kite in the field with his grandson. He agreed that there was also a Green within Whippingham Heights between Campfield Road and Barton Close. That was a 100 yards by 50 yards in area which was used quite a lot by children when they played. Trees and flowers had been put in and some seats through an organisation called The Whippingham Partnership. That organisation tries to enhance the look of the Village and care for the older residents. It also manages the Neighbourhood Watch Scheme and is allotted funds by the Isle of Wight Council.

15.7.6.16 There were 78 houses on the Whippingham Heights Estate of mixed types. The Community Centre was away from the Estate in Alverstone Road and there was the Medina Park Mobile Home Site going down the hill towards The Folly Inn. Apparently residents could live in that Site all the year round and some had permanent buildings with garages. He was referred to the photograph taken on the 8^th December 2003[61]. There was evidence of bottles on the ground by the fence adjoining Whippingham Road. He saw 3 people on that occasion one woman who ran into the trees and two men who ran out from the trees and down the road towards East Cowes.

15.7.6.17 I have to decide whether I can accept Mr Allcock’s evidence that the Allotments were not cultivated after May 1981. I have considered this carefully. There is an inconsistency between Mr Allcock’s evidence on this point and that of another of the Applicant’s witnesses namely, Mrs Hewitt, who said that no Allotments were cultivated after 1980. In addition, there is an inconsistency between Mr Allcock’s evidence and his questionnaire[62] when he refers to late 1981 as being the end of cultivation.

15.7.6.18 Further, there is inconsistency between Mr Allcock’s evidence and that of Mr Hames who thought that Allotments continued until perhaps 1985 and Mr Haile and Mr Michelmore who gave evidence for the Objector, and whose evidence I will deal with later. I note that Mr Allcock moved to Campfield Road in February 1981 and if he is right the Allotments were all given up within 3 months thereafter.

15.7.6.19 I bear in mind the Applicant’s Submissions about Mr Haile’s memory concerning his daughter’s age and therefore his memory as to when he gave up his Allotment but I am satisfied that Mr Allcock is wrong when he says that no Allotments were cultivated after May 1981. I do not say that he is in any way untruthful but that his memory is defective in that respect. I also find it somewhat unlikely that 3 Allotments would be given up simultaneously at the beginning of the growing season, particularly when there was clear evidence of one Allotment Holder continuing on his own for a time thereafter. Mr Allcock made no mention of that. Nevertheless Mr Allcock is an important witness because his use of the Site stretched right the way back to the beginning of the Period, and he was the only resident of Whippingham Heights who gave evidence of user going back to that time.

15.7.6.20 I accept his evidence about his own user of the field which seems to me to amount principally to dog walking along the perimeter path. I also conclude from his evidence that large parts of the field, particularly on both sides of the central path towards the bottom end were heavily infested with brambles and weeds until the field was cleared in 1995 or 1996. I accept that he never saw any pigs in the field in his time, although I think from the evidence of other witnesses that it is likely there were a few pigs left until 1981 or 1982. I accept his evidence about the presence of sheep in the field and how they were fenced in with an electric fence. I think he may have taken his grandchildren to fly a kite in the field on one or two occasions but it is clear that a much more suitable Site for that activity was the Green which he described within the Whippingham Heights Estate.

15.7.7 Mr Andrew Pugh-Panther

15.7.7.1 He supplied a questionnaire[63].

15.7.7.2 He worked at GKN from 1990 until 2002, when he was made redundant. He was the Senior Engineer in the Facilities Department and among his responsibilities were looking after the general condition of the Site. He was never based at Osborne Works but since his job involved all the GKN sites on the Island he was often at Osborne Works for some time. He lives at River View. The core Site at Osborne Works has two entrances now. The old main entrance gate has become disused and the new main entrance is the one used now off of Whippingham Road.

15.7.7.3 Since he has been with the Facilities Department attempts had been made to reduce costs. The priority was to keep the fencing around the core Site intact. The area around the Sports Site was a lower priority and the area around the Allotments was a much lower priority still. He described the use of the Allotment Site by local people as “allowing an amenity to the local area with the Company’s goodwill”. He said it was a fact of life and a commercial decision at the end for the Company to prioritise its expenditure on security. He knew that the Company turned a blind eye to people using the Site for dog walking. He said he had seen the gate off Whippingham Road in all sorts of states, sometimes on its hinges and sometimes off and at one time it was laid flat on the ground. At other times it was unlocked to let machinery in and then left unlocked for long periods of time. The other gate into George’s Field was a low priority and was always left unlocked. One of the hinges of the gate into Whippingham Road had failed and was never renewed. Another time the gate was padlocked, then unlocked to let machinery in and the padlock was never replaced. To the best of his knowledge there were never any “keep out” signs on the site. The Flagellation Rig was fairly noisy generally but people could walk quite close to it without any danger although they might get wet. Some walkers gave it a wide berth.

15.7.7.4 He was cross examined. He had lived in River View since 1996 and before that at East Cowes. During the early 1990’s the gate to Whippingham Road was kept locked but then it was left unlocked. A local farmer cut the hay and left the chain off when he removed his machinery. He did not think that the gate was ever locked after then, although it was locked for a period in the late 1990’s. After Mr Rann went into cut hay he thought the gate remained unlocked. The hedge had been broken down at two corners of the field (the South East corner and the North West corner by the main gate) and there was easy access into the field from the exterior. The hedge had been broken in the South East corner since the mid 1990’s. There had always been a gap there which was getting larger. He remembered someone telling him that something ought to be done about it. You could walk through it although it was narrower than a doorway. He didn’t remember such a gap in the hedge before living in River View from 1996.

15.7.7.5 The other gap was caused by dog walkers. He remembered people parking their cars but not going through the gate. The dogs were being unloaded and let loose through the gap. However that gap was plugged fairly quickly. Most dog walkers went up the centre track and let their dogs run on each side of it. The people who went in through the North West corner tended to follow the fence round. They wandered alongside the Work’s fence and came back the same way. He thought most walkers tended to stick to the track and only a few wandered off it. He had never seen anyone flying kites. He had seen bird watchers. There were birds of prey in the locality and because the ground was relatively undisturbed there were skylarks. He had never seen children playing.

15.7.7.6 He remembered vandalism to Mr Rann’s tractor one year and it was quite badly damaged. He had never seen anyone picnicking. He had seen people blackberrying from the footpath but not normally from inside the field. When Mr Rann got the hay cut he was given permission to do so by GKN. Apparent Mr Rann worked for the Facilities Department. Part of the cut was to be given to the Pony Club and he (Mr Pugh-Panther) had some for his own horses. Mr Rann cut the hay regularly and Mr Pugh-Panther used to inspect to see if there were any standpipes left prior to Mr Rann doing his cutting. There was water to the Site until 1992 when Mr Pugh-Panther had the meter disconnected. Mr Pugh-Panther used his hay for jumps for his horses and Mr Rann used it for his animals. The machinery used tended to cut everything growing. After Mr Rann had finished a Mr Lorlick was responsible for cutting the grass during the late 1990’s. He said he got the impression that the hay cutting was a regular thing although he didn’t remember the ground being cleared and reseeded. He didn’t remember any time when the grass was not being cut for hay. The water meter was capped and removed when it was judged unlikely that it would be needed again.

15.7.7.7 He had no responsibility for security matters. His primary task was concerning the use of energy. However, if he spotted something he would mention it. He was not the decision maker concerning the Site boundaries. Mr Hernes was his Supervisor and he was aware of the situation on the ground. He did not think any formal decision was taken to tolerate the dog walkers and others using the field, he didn’t think there was any policy concerning it. It was just a question of no one doing anything about it because the field was then a redundant area. He thought no action was taken partly for budgetary reasons and partly because the field was redundant. There were always plans to use the field at some time and these plans changed over the years. Certainly, Mr Hernes was aware as he was of people walking in the field. He had never seen anyone force their way into the field although it was never fully secure. He was given no instructions from Mr Hernes as to what to do concerning people in the field.

15.7.7.8 Mr Pugh-Panther’s evidence is quite important. He was responsible for the general condition of the Site and lived at Whippingham Heights from 1996. There were of course lengthy periods of time when his work took him elsewhere and I have to bear in mind that to that extent his observation of activities on the Site was limited. Nevertheless, the general impression he gives of people using the Site mainly for dog walking along trodden paths with occasional blackberrying from the footpath (but not inside the field) is consistent with the observation of some other witnesses and I accept it. Equally important is his evidence concerning the knowledge of GKN Management of the use of the Site and the steps that were taken or not prevented.

15.7.7.9 He used the expression “turning a blind eye” to what was going on and I think that is an accurate description of the attitude of GKN Management during the 1990’s. I regard Mr Pugh-Panther’s evidence as being helpful and important when considering as I do later the nature and extent of the user of the Site during those years and also in deciding whether it would have been apparent to GKN as Site owner that Site users were asserting a right rather than exercising an amenity.

15.7.8 Mr Arthur Newnham

15.7.8.1 He supplied a questionnaire.[64]

15.7.8.2 It was part of his job to operate the Test Rigs. He said that people kept out of the way when the Rig was running no one walked their dogs in the area of the Flagellation Rigs. He described the whole Site as “just a dogs toilet”. He himself was not a dog owner. He described setting up the Flagellation Rig to test the Skirt material. He would do up 4 bolts, set the machine running to create the air stream and then turn on the water to create a spray onto the sample of fabric. The object was to keep the sample continuously wet while using the minimum amount of water to achieve the spray. While the testing was going on he would go into the building and do something else. His work frequently took him into the vicinity of the field although he only went into it on one occasion.

15.7.8.3 He was cross examined and said that he had been made redundant in 2002. He had worked at GKN since 1977. He thought it was highly unlikely that the Rig had been changed since he had ceased working for GKN and the operator did not vary the speed of the Rig. At one time he said the Rig was running continuously and on those occasions bales were used to keep the noise down on the Work’s side of the fence. He couldn’t remember starting the Rig when anyone was on the other side of the fence but said if you were 10 to 20 feet away you probably wouldn’t get wet.

15.7.8.4 He had previously worked for GKN between 1965 and 1973 and rejoined the Company in 1977. He always worked at the Osborne Site. He had never had an Allotment although he remembered Allotments being each side of the main path going down the middle of the site. He remembers grass cutting taking place on numerous occasions over the years.

15.7.8.5 Over the years various short cuts were made into the Site and he remembered one in the South East corner and one by the main gate. He couldn’t remember when this practice started. He thought that other accesses had been created towards the end of his time with GKN. He remembered the gate into Whippingham Road as being mainly shut. He also remembered vibrating testing equipment which was conducted in a sound proof Test Room. However you could feel the lower frequencies but these and the noise would not affect anyone using the field. Hovercraft were no longer built at the Site but until very recently Skirt material was still manufactured in the Skirt Shop.

15.7.8.6 Mr Newnham scarcely used the field at all. However, he had extensive opportunities to view other people using it. His impression that the Site was simply a “dogs toilet” is quite important because it comes from someone who worked next to the Site for many years. I accept his evidence concerning his impressions of the use of the Site by dog owners. Equally, I accept his evidence that people on the Site tended to keep away from the area of the Flagellation Rig when it was in operation although I also note that someone 20 feet away from the hedge was unlikely to get wet.

15.7.9 Mr Edward Import

15.7.9.1 He supplied a questionnaire[65].

15.7.9.2 He had lived at 16 Campfield Road, Whippingham Heights since December 1993. He walked his dogs in the field twice per day from January 1994 and was never barred. He entered through the gate by Whippingham Road which stood on its hinges. There were no keep out signs and no maintenance work that he observed. He collected blackberries each September. He remembered that one could walk up the middle of the Site and straight through into the football field behind. In the evening people tended to stay in the field. He often saw other local people and some from East Cowes. The security staff never interfered with his dog walking and he wasn’t deterred by the operation of the Rig.

15.7.9.3 With reference to his second statement he remembered a lady dropping some lads off who forced their way through the wire. He mentioned this to Mr Allcock who suggested that he put it in writing and hand it in to the Security Office at GKN the next day which he did. He went to the old security gate and asked for the man in charge. He was not there so he gave in the piece of paper on which he had written details. No one from GKN had been in touch with him since then.

15.7.9.4 He was cross examined. He said he was retired when he came to Whippingham Heights. He had one Border Collie dog. He remembered sheep being in the field with an insulated electrical fence. He chose not to walk his dog in the field when there were sheep in it. The sheep were mainly on the left hand side of the asphalt track running down the middle of the field. He remembered grass cutting taking place over two to three years in the mid 1990’s. He also recalled that until then the Site was very overgrown with brambles up to both sides and fruit trees down the middle. He said you could walk to the edges of the Site and the brambles didn’t deter his dog. Various paths on the Site were open. He would tend to walk home through the cornfields or via the Sports Field and took various routes along the path.

15.7.9.5 Sometimes he went in the gate from Beatrice Avenue which heads into the Sports Field and then on to the Site via the footpath. You get on to the Site through a gap in the hedge. He never saw barbed wire there. He remembered ponies being kept in the left hand cornfield overnight. He didn’t remember the gaps in the fence between the Site and the Pony Field being closed even in July and August went the Pony Club took place. The main gate to Whippingham Road was intact when he arrived but was never locked. He always opened and closed the gate behind him. Eventually the gate fell into disrepair he thought when grass cutting was going on. One of the hinges was broken. When the Flagellation Rig was in operation he usually walked down the middle of the field.

15.7.9.6 It is clear that Mr Import’s dog walking was confined to the defined paths and in particular the path that ran up the middle of the field. It is noteworthy that when the sheep were there he chose not to take his dog into the field. It is also noteworthy that he speaks of the Site being very overgrown before it was cleared with brambles at the sides and fruit trees down the middle. Mr Import clearly had a set route which involved either going through the main gate to Whippingham Road or through the Beatrice Avenue gate and coming back via the Sports Field and the site. His evidence about seeing youths forcing a way through wire is of note because it confirms a general lack of maintenance and security on part of GKN Management. I see no reason to doubt Mr Import’s evidence.

15.7.10 Mr Roger Hewitt

15.7.10.1 He supplied a questionnaire[66]ewit.

15.7.10.2 He lives with his Wife at Padmore Lodge, Beatrice Avenue, Whippingham. They moved there in December 1979. He started using the Site in 1980. He originally went in through the gate and exited via the hedge. There were no keep out signs and no indication of any maintenance being carried out. He saw other people in the field. It was obvious to him that there had been Allotments there but a lot of them had become overgrown. He could not remember how many were left. He walked his dog and indulged his hobby of wildlife photography. He had a wildlife garden at his home. He discovered the remains of the pigsty area but knew nothing of the Flagellation Rig and had never heard it nor seen it in operation. He used the Site until it was gated in 2002 but he said it became less interesting as it got cleaned up.

15.7.10.3 He was cross examined. He said that Whippingham consisted of four separate areas. The first was Whippingham Heights. The second was along Alverstone Road where the shop and Post Office were together with a number of houses. The third was close to Whippingham Church and along Beatrice Avenue and the Village School. He described the houses there as being “sparsely grouped”, a comment with which I agree from my own observations. The fourth area was the Medina Park Mobile Home Site down the hill and near to the river by the Folly Inn. He confirmed that the red area marked on the plan[67] consisted of Whippingham and not the black.

15.7.10.4 He said that until 1996 he tended only to go to the Site at evenings and weekends because he was working as a Factory Manager in Portsmouth and didn’t get back until about 6 o’clock. After that he had more time and spent more time going there. Perhaps once a weekend in the Winter and Summer. He confirmed his view that the field got less interesting in 1996 when it was cleaned up. At the same time his dog died. He remembered the grass being cut and the brambles cut down. By then the Allotments had all gone to seed and were covered in brambles. He thought people tended to tread paths as they walked because there were not distinctive paths. From his memory the Allotments didn’t look clean and tidy. In his early days he confined himself to the Northern end of the field and didn’t go near the Allotments. He never saw any pigs but remembers the remains of the pigsties.

15.7.10.5 He identified several wild birds which he had photographed including yellowhammers, linnets and owls. He remembered the sheep on the field which he continued to use while they were there although he didn’t remember the electric fencing. He would enter either through the Whippingham Road gate or via Beatrice Avenue. There was a gap in the hedge at the far end of the Site either side of central path and one at the Northern end as well. The Whippingham Road gate was frequently ajar and he pushed it open. He couldn’t remember it being locked at any time. He thought that plenty of people walked the Site over the years and that the paths were more noticeable before the ground was cleared up.

15.7.10.6 Mr Hewitt’s evidence I regard as important in several respects. I have no reason to doubt it. His description of Whippingham confirms my own observations and that of the documents I have seen. It is clear that until 1996 the Site or a large part of it was overgrown with brambles including those parts which had formerly been Allotments. His description of the Site prior to its clearance must be an important factor in my mind in deciding whether or not it would have been an attractive recreational area for local people. I accept Mr Hewitt’s evidence.

15.7.11 Mrs Cindy Targett

15.7.11.1 She supplied a letter and a questionnaire[68].

15.7.11.2 She lives at Number 7 Barton Close, Whippingham Heights and has done so for 16 years or more. She was formerly Miss Pymot. She lists the activities she engaged in on the Site as walking dogs, watching wildlife, fruit picking and flower picking. She originally went in company with her late Mother almost every day. In the week she would go in the evening after 5pm and at weekends at any time of day. She thought her Mother used it during the daytime (her Mother then being in her late 50’s). They never found that the way was blocked. They never found any “no entry” signs. She saw some fencing go up recently at the corner nearest the GKN new entrance. She saw people walking dogs and children playing on the Site for what she called “general recreational”. She thought people were using all areas of the field but didn’t see or notice the Allotments or any traces of them. She started using the Site in the Autumn of 1987 and never saw any GKN security staff. She never saw the Rigs running.

15.7.11.3 She stopped using the Site in about January 2003 when notices were placed on the boundary. She said more signs appeared later. She noticed some sheep in the Spring of 1999 and believed you could walk around the area where the sheep were contained. She invariably got in through the main gate and then used what she described as the “well trodden” entrance in the corner of the field or she came in via the lower field. She would not have climbed over the gate if it were closed.

15.7.11.4 She was cross examined. She said she worked throughout the period she lived at Whippingham Heights. She has one dog now and had three originally. At the time the sheep were in the field her large dog was having a ceasarian so she didn’t walk the field then. You could get between the electrical fence and the hedge when the fence was in position. The sheep were mainly kept on the left but were moved to the right after a while. She saw the long grass cut once per year during the late Summer over the last 5 years or so. She remembered the bales being left behind and saw the cutter cutting the grass. She didn’t remember any rubbish or flares being burnt on the fields. Sometimes she would walk down the centre path or sometimes turn left and go around the perimeter. If it was wet and boggy she would keep to the central path. She frequently threw a ball for her dog to fetch and having considered the matter concluded that she usually walked around the perimeter.

15.7.11.5 At one time there were a lot of broken bottles in the corner by the informal entrance and she did not use that until they had been cleared away. For the first 8 years or so she usually used the main gate although there were lots of bottles and rubbish there also. She said you could walk through the hole at the corner fairly easily. There was a mound in the ground but that didn’t prevent you getting in. She remembered the gate as being rusted rotten and hanging on one hinge. She only once saw the padlock on the gate. She picked blackberries from the central path at the far end and in the middle. She thought that brambles had grown in amount and area over the years and that there were rough areas of greenery and weeds between the brambles.

15.7.11.6 She remembered the entrance being changed in about 1996. Before then there was a pull in but a fence was put up which stopped people getting in from Whippingham Road. There were gaps in the fence by the Football field. She never saw any barbed wire. She remembers ponies being in the Football field but couldn’t remember any fencing to keep them out of the site. She remembered the field as being boggy along the section nearest Whippingham Road and in the bottom left hand corner. She thought the Site was mainly used by other residents from Whippingham Heights and a few from out of the area.

15.7.11.7 I had some difficulty with Mrs Targett’s evidence. She claims to have used the Site regularly since the Autumn of 1987. I would therefore have expected that she would have noticed the complete change in the Site from 1995 or 1996 when it was cleared and reseeded. I would also have expected her to be aware of the Rig and to have seen or heard it in operation at some time although I observe that she may have used the field principally during evenings and weekends when the Rig was less likely to have been working.

15.7.11.8 However, I am surprised that she did not make any reference to the land being cleared by Mr Rann in 1995 or 1996 and reseeded. I think this must affect the weight I give to her evidence. The effect of her evidence was that the character of the land had not changed since 1987 although she thought that it was becoming more overgrown.

15.7.11.9 Two further features of Mrs Targett’s evidence call for comment. Firstly, she claims to have seen children playing in the field although she only identified their activities as “general recreation”. Secondly, no other witness stated that the gate to Whippingham Road had been rusted rotten from 1987 onwards and always stuck in a half open position. I do not accept that Mrs Targett saw children playing regularly and do not accept that the Whippingham Road gate was stuck in a semi open position from 1987 onwards. That is not to say that I think Mrs Targett was trying to mislead me. Once again, I simply doubt the quality of her recollection. Further, I have doubts as to whether the corner entrance to the field through the hedge was consistently obstructed with bottles and rubbish for 8 years as Mrs Targett claims, or that she was thereby prevented from using that as an entrance to the field. However, I entirely accept that she tended to keep to the perimeter path inside the hedge and I think this is consistent with my impression of the nature and character of the site, at least up until 1995 or 1996.

15.7.12 Mrs Ruth Adams

15.7.12.1 She supplied a questionnaire and a letter[69].

15.7.12.2 In her questionnaire[70]. Mrs Adams said: “In the early 1980’s my Dad had an Allotment on the land and as a child I would play with my Sister”. In her letter she said as follows: “Since the early 1980’s I have used this land for pleasure. My Dad had an Allotment here in 1980 and we all used to walk from Broadsmith Avenue, East Cowes and whilst my Dad worked on his Allotments my Sister and I would explore the green, play ball, run around and pick blackberries.”

15.7.12.3 In her oral evidence she said that she had lived at 4 River View, Whippingham Heights since 1999. Before that she lived in Barton Close (also Whippingham Heights) from 1993 and before that in Newport. As a child she had lived in East Cowes. She was now aged 38 and due to turn 39 in January 2004. Her Father had an Allotment and she used to go up with him. They used to play up there. She walked her own children up there in nice weather. Her children had grown up knowing the area. The Site was never barred or gated. She never saw any signs or evidence of any maintenance work. In season they used to pick blackberries. It was a safe place for play. She never saw any other children playing there although she saw dog walkers in the field. Her children frequently ran off and hid in the trees. She thought the grass could grow fairly tall. They would only go in good weather. She had never noticed the Flagellation Rig.

15.7.12.4 She was cross examined. Her children are now aged 13 and 11. She had been at work throughout the time she spoke of. She confirmed that there was a Green for children to play on within Whippingham Heights. She remembered sheep being on the field and some of them lambing 3 or 4 years ago. She didn’t notice the electric fence. She said when there were sheep in the field she didn’t go in because she had a toddler with her.

15.7.12.5 She remembered the Allotments from when she used to go with her Father and that they became very overgrown with brambles when the Allotments were abandoned. She remembers entering the field through the hole in the left hand corner and said there were other gaps in the hedge. She couldn’t remember gaps in the right hand corner or if there was any barbed wire put in to keep people out. She tended to stay on the middle path. She never noticed a chain or a padlock on the gate which always looked as if it was about to fall down. She could not remember a time when the gate wasn’t like that. Sometimes she would stay a bit longer. Dog walkers that she noticed tended to keep to the perimeter and the only activity she saw on Site were other dog walkers.

15.7.12.6 Her Father worked for GKN and she moved from East Cowes to Newport in 1990. She confirmed that she was born in January 1965. She thought her Father began his Allotment in about 1975 or 1976. She thought that he was one of the last to keep his Allotment going. She thought that he kept it for 3 or 4 years. Lots of people had them originally but they gradually stopped using them. She thought there were only 3 or 4 at the end. She remembered the Allotments as being half away up the field on the left but couldn’t remember how many in all there were. She looked at the plan[71] and confirmed that she thought the red rectangle showed the last Allotments in use. She also thought that there were some sheds originally.

15.7.12.7 Criticism has been made of Mrs Adams’ oral evidence because she changed the years in which she went to the field with her Father. In her written evidence she suggested that this continued until “the early 1980’s”. In her oral evidence she suggested that such visits ended by 1980 ie. her Father used it for 3 or 4 years from either 1975 or 1976. I do not know if Mrs Adams Father’s name was ever established but I note from her letter that they lived in Broadsmith Avenue, East Cowes when she was a child. Mr Cox spoke of a Peter Castle who lived in Broadsmith Avenue as being one of the last Allotment Holders who gave up his plot about 20 years ago, possibly a little bit less. It is of course possible that the address is a coincidence but given Mrs Adams evidence that her Father was one of the last Allotment Holders I think it reasonable to conclude that her Father might be Mr Castle.

15.7.12.8 I am prepared to accept that Mrs Adams’ Father, who ever he is or was, was one of the last to keep his Allotment going but I think that she is mistaken as to when he ceased. I note that she puts the start date as 1975 or 1976 whereas we have evidence from Mr Hames, which I accept, that the first growing season was 1977. Mrs Adams would then have been 12 and it is entirely possible she went to the Allotments with her Father at that age although I doubt whether she would have continued to do so until 1984 when she would have been 19.

15.7.12.9 Although there is a degree of uncertainty about this matter I am unable to conclude from Mrs Adams’ evidence that her Father gave up his Allotment by 1980. Rather, I think that her Father was one of those who continued into the early 1980’s and Mrs Adams’ memory goes back to the time when her Father started his Allotment and she was still a young girl. In that respect, I prefer her written document to her oral evidence. I accept her evidence when she said that she tended to stay around the area of the central track in the middle of the field and that the only activity that she observed were dog walkers walking around the perimeter. It is noteworthy that she does claim to have observed other children playing in the field. She never noticed the Rig in operation and I conclude from that her visits were not that frequent. Mrs Adams was not a dog walker. I also note from Mrs Adams questionnaire[72] that she says she started using the Site in 1980 and in her letter[73] said “her Dad had an Allotment here in 1980”. It seems to me that this is a further reason for being doubtful about Mrs Adams’ estimates of dates.

15.7.13 Mr Spencer Darlaston-Jones

15.7.13.1 He supplied a questionnaire[74].

15.7.13.2 He lives at Number 3 River View, Whippingham and has done so since April 1997. He was born in 1961 and lived in East Cowes during his childhood. When he was 12 or 13 ie. in 1973 or 1974 he used to go up to the Site to play. He said it was the first accessible field outside East Cowes. He continued going up there until he was about 15 ie.1976. That coincided with the Site being ploughed up for Allotments and he didn’t go up there after then. He said in the Summer time he would go up may be twice per week. He had an air gun and used the field for “a romantic liaison”. He usually went in through the main gate and remembered the new entrance to Whippingham Road being opened up. It was mainly used for walking. He remembered a pair of nesting kestrels in the right hand corner and a pair of buzzards across the road. He was not aware of the Rig in operation although he remembered hearing a loud noise during the late afternoon. He said that several people from the Whippingham Heights Estate, where he lived, used to walk their dogs on the site. They were never stopped by Security Staff.

15.7.13.3 He was cross examined. He said he took his young son up to the field to play who was now 3½. When challenged on this he said you could play with an 18 month old child although they tended to stay on the paths and only stray off onto the field if the weather was dry. The kestrel nested in trees on the GKN land. One of the hinges of the gate to Whippingham Road was broken. He recalled the hedge on the left by the stile having strands of wire in it to stop people getting in. He remembered sheep in the field in the late 1990’s and an electric fence running right the way across the field. He also remembered seeing bales of hay in the field. He didn’t use the field in Winter time because it was dark and wet and tended to flood in the far left hand corner and along the boundary with Whippingham Road. He said the whole field was a maze of paths and the Allotments were used up until 2 years either side of 1980 when the Site reverted to feral land, bracken and long grass fairly quickly.

15.7.13.4 Mr Darleston-Jones’ evidence is of importance because he can speak of a time prior to the field being ploughed up for Allotments in 1976. Although that is prior to the period with which I am concerned it is of value to have some evidence as to the state of the Site prior to 1976. It is clear from Mr Darleston-Jones’ evidence that the Site then was very much as it was after the Allotments had been given up and before the ground was cleared in about 1995 or 1996. He recollected the Allotments being used up until 2 years either side of 1980. It clearly would not have been 1978 when user finished because that was only the second growing season and all witnesses agree that there were more growing seasons than two. I therefore think that his evidence suggests that the Allotments continued to be used at least until 1982. I accept Mr Darlaston-Jones’ evidence.

15.7.14 Mr Brian Taylor

15.7.14.1 He is of course the Applicant. He produced his own questionnaire[75], a letter[76] and an evidence questionnaire in the Open Spaces Society format[77].

15.7.14.2 His address is Number 1 Matthews Cottage, Barton Manor Cottages, Whippingham. He said that he was self employed and involved in producing pantomimes with his Wife. They had moved into Newport Theatre on the 19^th December until the 30^th December. He was concerned about the delivery of document Bundles and the fact that the Objectors were producing three new witnesses in the form of Messrs Deeming, Marlow and Michelmore. He asked whether his associate Miss Tobin could undertake some of the cross examination of the Objectors witnesses. [I agreed to this and in some cases Miss Tobin cross examined the Objectors witnesses]. He then offered himself for cross examination by Mrs Craile.

15.7.14.3 He was then cross examined extensively by Mrs Craile. He said that he had lived at his present address since September 1987 and prior to that lived at Cambridge Road, East Cowes from September 1977. His family consisted of himself, his Wife and his two children born in 1965 and 1968. He saw his children grow up on the Isle of Wight prior to which they lived in South London. While living in East Cowes he was head of the Faculty of Creative Arts at a School in Newport and remained in that post until 1990. Now he does a variety of work including research for companies and for the Isle of Wight Council. He was referred to his Table[78] and said that in his own case his declared user was an average figure and that he tried to be cautious. The figures he produced were in relation to the year 2002 and that he himself had used the field several times per month.

15.7.14.4 He couldn’t tell the Enquiry much about use of the field between 1987 and 2002 from his own knowledge save that he drove past the Site each day on going to work. He thought the Site was more overgrown in 1987 and the terrain more uneven. However, he thought it was accessible. He thought that at that stage there were many brambles and tussocky grass except in Winter time. He didn’t know about the grass cutting from the mid 1990’s of his own knowledge. He thought there were areas of the Site which were cultivated in the 1980’s and which subsequently reverted to nature, thereby making an undulating terrain.

15.7.14.5 He had no memory of seeing any maintenance or land management being carried on. His own dogs were miniature long haired Dachsunds which enjoyed open spaces but which he kept out of long grass because they got wet and dirty. He agreed that the Site had a tendency to become boggy in wet weather, particularly in the areas where people walked. When it became boggy it tended to stay that way for up to 3 weeks. He visited the Site after it had rained in 2002 and found it to have been waterlogged before Christmas. A different area of the field was waterlogged when he visited it 3 to 4 weeks later.

15.7.14.6 He thought the land in the field was fairly level and would not deter a country dweller like him from walking. He remembered walking the field from Easter 1983 when he was living at East Cowes. He saw no evidence of cultivation of the Allotments from the time he started walking the field. He gave the example of Carisbrooke Nurseries in Newport as being a well run Allotment Association and as a standard by which one could judge other Allotments. He thought one could easily distinguish an Allotment which was regularly used from one which had ceased being used. He thought that there was a clear definition of the ground when someone digs a plot.

15.7.14.7 He was referred to his Application to Register[79] and said that he was inviting the Registration Authority to register all the land except the dozen or so Allotments which Mr Hames referred to. He was asked by the Registration Authority to clarify the area of land he wished to exclude more carefully and he attempted to do so by marking the plan[80]. He said that when he made the Application he did a fair amount of research and he tracked down a number of Allotment Holders and asked them where they believed their Allotments were. He said his research had led him to believe that he should exclude 12 Allotments as still being cultivated in 1981 but he could not find 12 Allotment Holders for that year. Accordingly, he created an area which might have covered the 3 Allotments for which he had evidence of existence in 1980 and a further 9 to 10 which accounted for the number mentioned by Mr Hames. He said that his information came from 3 or 4 people who were some of the last Allotment Holders. He thought that by the middle of 1981 there were only 2 or 3 Allotments left.

15.7.14.8 The red rectangle he drew on the plan was intended to represent all the Allotments which might have been in existence in 1980. He was referred to the plan at page 15 and said the information he had put in was as accurate as he could be at the time. He paced the field to get the dimensions of 118 metres by 117 metres. He had no memory of any pigsties in the field at all. He remembered tumbled down brick walls connected to a concrete pad which was heavily overgrown. He used the Whippingham Road gate as a means of access to the field on all occasions and never saw it padlocked or chained. On six or so occasions he saw that the gate had been left ajar. He couldn’t rule out the possibility that at some time the gate may have been locked. To the best of his memory the alternative accesses to the field were from gaps in the hedges around the Training Field,

15.7.14.9 There was no gap in the South East corner that he was aware of but he thinks that it was in existence without his knowledge. He referred to a 1969 aerial photograph which showed the lower field appearing to be in a state of grassland and the Allotment field ploughed up. [That aerial photograph was never produced.] He said that the Training Field was as it is now throughout the qualifying 20 year period. He thought that the only access to the field was the gate and that there was a secure Hawthorn hedge between the Allotment field and Farmer Orlicks’ land. He said that there was barbed wire running intermittently across the far end of the field but inside the boundary. He didn’t think it was part of the boundary and may have had something to do with the old pigsties. [This is consistent with my observation of some barbed wire at the far end of the field and close to the central track on each side.] He said that he could enter the field through the gap in the South East corner without having to bend although he was 6 feet 2 inches tall.

15.7.14.10 He remembered the Pony Club had events in George’s Field or the Gymkhana Field as it was known. He had seen it set up with jumps but had never seen ponies in the lower field. He would not however dispute the possibility that there were ponies in the lower field at one time. He could not comment on the statement of Mr Gill concerning the fencing off of the Pony Field.[81] He thought that if there had been fencing then it should have been on the other side of the hedge. He didn’t remember sheep in the field in 1999 and has no memory of any burning or controlled explosions going on. He had seen hay and grass bales but thought it was of poor quality.

15.7.14.11 The field next to his house was an organic meadow and a Farmer called John Warne used to take hay from that field in bales and sell it. He thought that most of the hay from the Site was baled but left in the field. Mr Pugh-Panther used it for his jumps for his horses but not for cattle. He thought that the Whippingham Road gate was dilapidated but functioning. He saw no evidence of it being maintained or repaired.

15.7.14.12 The new fencing put along Whippingham Road was part of a road widening scheme. In 2002 the gate was broken, the bottom bar was rusted off and one hinge was broken off. The lower hinge bracket was heavily corroded. He saw people in the field from time to time without knowing who they were or where they came from. Sometimes he went alone, sometimes with others. He was referred to the Table[82] and said it was an analysis of the people who used the field and where they came from. He said the Isle of Wight Council as Registration Authority had accepted Whippingham as either a locality or a neighbourhood and that GKN had only raised the issue since the Regulatory Committee recommended acceptance of the Site for Registration. He offered as an alternative locality the Polling District set out in the plan.[83] It had 709 voters. He said that he would be asking the Inspector to consider Whippingham Heights as a neighbourhood within a locality.

15.7.14.13 There was a Neighbourhood Watch Scheme. There was sufficient community spirit amongst the residents. They shared their door keys and looked after one another’s interests. That was one of the essential features of a neighbourhood. He said it could be compared with eg. St Mary’s in Southampton or the East End area of London. He thought that a housing estate might properly be called a Neighbourhood. Whippingham School was the neighbourhood school and the Post Office serves the same neighbourhood. The same thing could be said about Whippingham Church. He thought that more people had used the Site from Whippingham Heights than from any other area. He said it was an isolated community and there was not much noise apart from a distant traffic hum. He didn’t think that the Testing Rig created a great deal of noise. Equally, he said there was no evidence of any damage to vegetation from salt or oily water spray from the Test Rigs.

15.7.14.14 He agreed that when the draft Unitary Development Plan for the Isle of Wight was considered no objection was received to the proposed designation of the Site as an employment Site on the ground that it would involve the loss of recreational land. He agreed that the proposal of GKN to use part of the Site as a Trailer Park and the Planning Application that ensued was the catalyst that sparked his Application for Registration. He confirmed that there was a good few of local opposition to the idea of a Trailer Park on the site. He also confirmed that there was another Application to Register as a Village Green for Whippingham a Site further down the hill towards Newport and adjacent to the roundabout.

15.7.14.15 Much of Mr Taylor’s evidence and cross examination was more concerned with the presentation of his case than with his own use of the land. Nevertheless, I accept Mr Taylor’s evidence that the Site was much more overgrown in the late 1980’s and until it was cleared in 1995 or 1996. I also accept his evidence that because of the nature of the terrain large parts of the field tended to become boggy in wet weather. He said he saw no evidence of cultivation of the Allotments when he first started to walk the Site at Easter 1983. I certainly think that the number of Allotments would have been minimal at that time and to a casual observer it may have appeared that the entire Allotment Site was abandoned, but I do not think there were no Allotments at that time. Rather, I think there were one or two scattered about the Site which continued for another year. I think Mr Taylor’s attempt[84] to designate a notional area covering 12 Allotments was an honest attempt to exclude an area that would have been covered by such a number of Allotments but I do not think that the Allotments were grouped together in the manner that the plan would suggest.

15.7.14.16 I think the plan at page 36 was a response to the Registration Authority’s request to Mr Taylor to clarify the situation concerning the Allotments. I accept Mr Taylor’s evidence about his use of the gate to gain access to the Site but from my own observation and the photographs I doubt his evidence about being able to gain access through the gap in the South Eastern corner. I do not agree with Mr Taylor’s strictures on the Objectors evidence concerning the Pony Field and in particular the location of the fence placed by Mr Gill behind the boundary. In my Opinion, the evidence from Mr Gill on this was quite convincing.

15.7.14.17 I note that Mr Taylor is asking me to consider Whippingham Heights as a Neighbourhood within a locality rather than as a locality in its own right and I note that he is asking me to consider in the alternative Whippingham Polling District as a locality. I will comment on this later in this Report. I equally note that there were no objections raised when the Isle of Wight Unitary Development Plan was published in May 2001 designating the Site as an employment Site which I find rather surprising given the chronology of this Application. I accept that there is a considerable amount of opposition to the use of the Site or part thereof as a Trailer Park and that may well have had a bearing on this Application being made. Notwithstanding that, I must point out that the motives behind the Application for Registration are largely irrelevant to my function. I simply have to determine whether I am satisfied on the evidence that the Applicant has made out his case for Registration on the balance of probability and to make a Recommendation to the Registration Authority based on my Findings. I do however accept that when assessing the credibility of the Applicant’s evidence and that of his witnesses I must take into account the matters I have just referred to.

15.7.15 Mrs Angela Hewitt

15.7.15.1 She supplied an evidence questionnaire[85]. She is the Wife of Roger Hewitt whose evidence I have already referred to and lives with him at Padmore Lodge.

15.7.15.2 She said that they moved in December 1979 and started to use the field almost immediately. They were keen walkers and explored the field for the purposes of “nature study”. She described herself as a fulltime water colour artist and she has painted the raw ingredients of food since 1998. Prior to that she wrote a series of cookery books over a 2 year period. Prior to that she ran a restaurant in Newport for 15 years whose menus were based on natural wild ingredients. It opened in March 1981. She said that there were lots of wild fruit in the hedgerows and vegetables in the disused Allotments. There were crops growing near the path. When she opened her restaurant there were a few Allotments left and 2 or 3 of them had things growing in them.

15.7.15.3 Nothwithstanding the fact that she had a very large garden at her home she was interested in the Allotments and spent 1980 looking for Allotment Holders. She said she kept an eye on the Allotments and saw no evidence of anyone turning over the soil in the Winter of 1980/1981 and no evidence of cultivation in the Spring of 1981. All she saw were the seed heads from the previous year’s crop. At one point 3 Allotments had merged into one near the path on the right hand side as one approached from Beatrice Avenue (as she would have done) but on the left if one approached from Whippingham Road. She said she wandered around and gathered leek seed heads and those of brassicas and lettuces. She took them home and dried them. She was certain no work was being done on the Allotments then. She picked elderflowers, brambles and blackberries from the hedgerows and also elderberries and sloes. She picked parasol and puffball mushrooms from the field to eat and created recipes in her restaurant from them. She spent most of 1980 doing this.

15.7.15.4 Her restaurant had formerly been a Petrol Station called “Lugleys”. She was in the Egon Ronay Guide within one year. She said she continued to use the field until she closed the restaurant in 1994. She said that the Allotments did change. They became more overgrown with brambles and blackberries and were all absorbed into the landscape. She never saw an Allotment being worked and never saw anyone working an Allotment. She did however see evidence of past work.

15.7.15.5 She said as one came along Beatrice Avenue there was a stile after which there was a footpath then there was the hedgerow and a 6 to 8 foot gap followed by a long row of barbed wire. There was an enamel bath between the hedge and the barbed wire. You could walk between the hedge and the wire quite easily. She frequently walked through gaps in the hedge between fields which are now overgrown. She never saw any barbed wire in such gaps. There was however barbed wire in the hedge around the Football Field. She only used the gate on Whippingham Road as a short cut. She saw people in the field sometimes but didn’t know who they were or where they came from. When she had the restaurant she used the field every day and sometimes on Sundays but not always. She closed the restaurant in 1994. By then her use of the field had declined although she still gathered a few fruits and mushrooms even after the restaurant had been closed. Her dog died in 1995. She went up to the field to look for wildlife and did a wild flower study of flowers such as vetch, meadowsweet, ragwort, daisies and butterworts. She never saw anyone cutting the grass although she noticed some rotting bales a couple of year’s ago. There were no signs in the field. She didn’t stick to the paths but wanted to access what she described as the difficult bits of the field.

15.7.15.6 She remembered the tumble down pigsties but never saw any pigs. She thought she had seen some sheep in the field but would have ignored them. She saw no security staff from GKN and no one told her that she shouldn’t be in the field. She was vaguely aware of the existence of the Flagellation Rig but not troubled by it. She remembered general noise from the Factory and she could hear thudding sounds from her house.

15.7.15.7 She too was cross examined. She said her dog was a Golden Retriever and she had it from January 1980 for 15 years. She didn’t remember any burning of rubbish in the field in 1988. Nor any controlled explosions in 1990. She threw sticks for her dog to fetch. She remembered the brambles and the blackberries as being in the middle of the field and towards the bottom end near the lower field. There were sloes in the hedgerows and elderflowers in the bottom corner. There were also some apple trees which had been discarded and cut back. She said that gradually the ground cover changed and the brambles became more prolific. After that she had to wear a waxed jacket when going into the field and use a stick to break the brambles down. She remembered walking to East Cowes on occasions and going through the Whippingham Road gate to gain access to the road. She noticed that the gate had been buckled and was left open. She said she always used the same route into the field although she saw other exits and entrances including one on the right from the entrance she used.

15.7.15.8 She denied using the field largely as a route to get to Whippingham Road and said that a big entrance had been created recently in the hedge at the South Eastern corner. At one time you could have got a vehicle through the gap in the hedge between the fields but it was a bit reduced now. She remembered barbed wire in the hedge dividing the Site from the Pony Field when the Pony Club was in occupation. She said there were vestiges of other strands of barbed wire in the hedge but they were very decrepit. There was not barbed wire across the gap. She remembered a free standing barbed wire barrier to keep the ponies in the Pony Field but it was situated in such a position as to let you pass through.

15.5.15.9 She was certain that she had observed no cultivation in the Allotments after March 1981. She thought the field belonged to the Council but didn’t make any enquiries. She didn’t know how to go about making enquiries and certainly didn’t ask in Whippingham Village. She said she didn’t have a lot to do with village life. She agreed that she became a County Councillor in March 1998 and first became aware that the field belonged to GKN at that time. She had ceased being a County Councillor in 2001 and didn’t then stand for re-election. She agreed that she wanted to reduce the size of the housing redevelopment in order to protect Whippingham Village. She had learned of this Application at that time.

15.5.15.10 She said that Whippingham consisted of one half the Osborne Ward and Whippingham was within the red line shown at page 60E of the Red Bundle. However, Whippingham was always treated as a separate area by the Council and had separate funding. There were two separate budgets. A larger one for East Cowes and a slightly smaller one for Whippingham. They also had two separate Community Partnerships. The Osborne Ward was partly now in East Cowes for budgeting purposes. The Community Partnership Scheme involved an expenditure of 2p per head and the expenditure was done by a Committee based on a five year plan. East Cowes had its own Town Council and the East Cowes side of Osborne Ward was contained within the East Cowes Town Council.

15.5.15.11 The Community Partnership was set up under the auspices of the Isle of Wight Council and had to have a Constitution. Anyone could speak and there were annual elections for Committee members.

15.5.15.12 I have had some difficulty with parts of Mrs Hewitt’s evidence. There is an inconsistency between her assertion in oral evidence that she saw no evidence of cultivation of Allotments after 1980 and her questionnaire[86] where she says by 1981 there were only two or three Allotments being used at time. But the use appeared to be infrequent. Equally, I much prefer the evidence of Mr Gill to that of Mrs Hewitt when it comes to fencing the Pony Field. Further, I express some difficulty with Mrs Hewitt’s evidence that she spent large parts of 1980 trying to ascertain who owned the field. One would have thought that enquiries at that time within Whippingham Village would have revealed a number of Allotment Holders who could have told her immediately that they rented their Allotments from GKN. Equally, if she thought as she claimed she did that the Council owned the land, it is surprising that she made no enquiry of the Council. I therefore treat Mrs Hewitt’s evidence with some caution and where it is in conflict with the evidence of other witnesses I generally prefer theirs.

16.0 STATEMENTS MADE BY INTERESTED PERSONS

16.1 The Applicant listed Mr R Norris and Mrs J Hapgood as witnesses whom he intended to call. In addition, he listed Mr J Le Goff, Mr P Legge, Mrs J Merry, Mr A Allen and Mrs Luckett as witnesses who he did not propose to call but on whose written evidence and/or questionnaires he intended to rely. In the event all these persons spoke as interested parties at the end of the Enquiry as did the following three people namely Mr Busby, Mrs G Taylor and Mrs Collins. Since all their statements were broadly in support of the Applicant’s Case I shall refer to their statements now. I shall bear in mind in the case in each of them that they were not subject to cross examination and that I should treat what they say with caution. I shall deal with each of them briefly in the order in which they spoke.

16.1.2 Mrs Genevieve Taylor

16.1.2.1 She is the Wife of the Applicant and lives with him at the address given. She said that when they lived at East Cowes they walked the Site between 1983 and 1985. In 1986 they moved to Whippingham and from September of that year regularly walked the site. I do not think that her statement adds anything to the Applicant’s Case.

16.1.3 Mrs Royle Luckett

16.1.3.1 She supplied a letter[87].

16.1.3.2 She lives at 21 Alverstone Road. She and her late Husband moved to Whippingham in 1957 and have lived there ever since. Her Son was born in 1959 and brought up in the village. Her letter sets out how she and her late Husband and child walked across the Site regularly for many years. Her Husband died in 1977 and she continued to walk the field after his death. She remembered the start of the Allotment scheme. Her late Husband was employed by BHC (as it then was) before his death and she worked as a relief nurse. She apparently worked for BHC until 1978. She said she had seen residents of Whippingham walking through the fields with their children and dogs regularly. She expressed the view that Whippingham was a village community and hoped that it stayed so without any lorries. Her memory went back to when farmer Mr Warne, who lived at Coburg Farm, kept pigs on the site, which she described as “the Allotments field”. She also has memories of the field being ploughed although does not say when.

16.1.3.3 Mrs Luckett is not a resident of Whippingham Heights, and although she did not specifically say so, I think she has lived in Alverstone Road for all that time. Further, from both her letter and her statement I think her use of the field largely ended before the period with which I am concerned.

16.1.4 Mr Busby

16.1.4.1 He did not supply a statement or questionnaire but his Wife did[88]. His Wife did not give oral evidence or make any statement.

16.1.4.2 The Busby’s live at Number 2 River View, Whippingham Heights with their 3 children. Mrs Busby refers to them as living there for the past 14 to 15 years. Her letter is dated August 2002 so that takes one back to 1987 or 1988. She refers to the Site as “a recreational area” for the Whippingham community. She thought that many people walked their dogs on this land and said that they had never been challenged by any person when using it. So much for Mrs Busby’s statement.

16.1.4.3 In his oral statement to the Enquiry Mr Busby said that their house almost overlooked the Site and they could see it from their bedroom window. They used the Site from 1987 continuously until it was closed off. They could see all the walkers and people who used the site. They said there was no maintenance of it and that people could have full access at any time they wanted. GKN, he said, did nothing. They could come and go as they pleased. They played football every day in the Summer and were never challenged by the security staff. The Site was always open to the people of Whippingham.

16.1.4.4 In the event I do not think Mr Busby’s oral statement added anything significant to his Wife’s letter. Since it was not subject to cross examination, and since it was not referred to by his Wife in her letter, I have considerable difficulty with Mr Busby’s statement that he played football every day there in the Summer. Such statement is not corroborated by other residents of Whippingham Heights who gave evidence and who might be presumed to know the Busby family. Further I have no evidence as to the part or parts of the field on which football was played and over what period of years. Given that the terrain was in my view largely overgrown until 1995 I strongly suspect that any football played was after that date. Equally, I have no evidence as to the ages of the Busby children and when they might have been expected to play football. I do not think I can place any weight on Mr Busby’s evidence about football.

16.1.5 Mr Anthony Allen

16.1.5.1 He supplied 2 questionaires and a letter[89].

16.1.5.2 Mrs Jean Lambert-Allen has lived with him at 1 River View, Whippingham Heights, since 1991. I have already referred to her evidence. Mr Allen was employed by BHC from 1973 to 1991. He then took early retirement. He said he was an Allotment Holder for 3 years from 1974 to 1977 “roughly”. On occasions, he walked through the Site and picked fruit. He walked his dog with Mrs Lambert-Allen. He never saw any maintenance carried out. He referred to storm damage when a conifer on the front corner of the Site fell onto the main gate and flattened it. It was a long time before the gate was cleared and made upright and the hinge was left in a broken condition.

16.1.5.3 I am satisfied that Mr Taylor’s memory is defective when he refers to keeping an Allotment between 1974 and 1977 because all the reliable evidence shows that the Allotment Scheme did not commence until 1977. Piecing together Mr Allen’s letter and oral statement, I think it likely that he did keep an Allotment for 3 years but it was from 1977 rather than from 1974. 1974, according to Mr Allen, was when the Test Facilities Department moved to East Cowes. He moved to his present house in 1980. At the time the Allotment Scheme opened he lived in Binsted As I say, I think he is slightly muddled about dates, but I wholly accept that he kept an Allotment for 3 years and that was probably from 1977 to 1980 when he lived at Binsted. In his oral statement he spoke of using the field “on occasions”, but not as frequently as suggested in his letter. It is clear from his letter that he very much supports the idea of a Village Green being established on the site, and while I do not think in any way he intended to mislead me, I treat what he said with some caution.

16.1.6 Mrs Deborah Collins

16.1.6.1 She has lived at Coburg Cottage, Mount Road, Whippingham since 1972. From a glance at the Gazetteer Mount Road lies off Alverstone Road and runs roughly parallel to Whippingham Road. It is however on the far side of the Whippingham Heights Estate from the Whippingham Road. She did not make a statement or supply a questionnaire.

16.1.6.2 She said that with her younger brother and sister she picked blackberries and other fruit from the Site and met up with other youngsters to do so. She drives each day from Whippingham to East Cowes and saw people walking their dogs and playing football in the field. She said when she used the field she had no trouble getting in and no one from BHC tried to stop them.

16.1.6.3 Mrs Collins’ statement was expressed in general terms and I have no idea over what period or periods of time she was speaking. However, I wholly accept that her statement was consistent with that of others who said that people had no difficulty accessing the Site and were not challenged by BHC/GKN staff.

16.1.7 Mr Ron Norris

16.1.7.1 He supplied a questionnaire[90].

16.1.7.2 He lives at 19 Barton Close, Whippingham Heights and has done so since 1997. His Mother lived there for 5 or 6 years previously. He said he used the field regularly for picking sloes and blackberries and was never once challenged. On one occasion he passed the time of day chatting to the Security Officer who was on the Works side of the boundary hedge and Mr Norris was in the field. He was not challenged even then. He never remembered any maintenance work being done except during the last 6 months and had no memory of the Whippingham Road gate ever being closed.

16.1.7.3 I am not clear about where Mr Norris lived before 1997, particularly since he claims to have used the Site since 1986, but accept that he used the Site for the purposes of picking wild fruit over a number of years and was never challenged. I accept that one occasion he talked to a Security Officer who was on the other side of the hedge and was not challenged on that occasion. Such evidence is consistent with the evidence of others and I have no reason to doubt it.

16.1.8 Mr John Le Goff

16.1.8.1 He supplied a letter and questionnaire[91].

16.1.8.2 He lives at Number 25 Barton Close, Whippingham Heights and has done so since 1992. Prior to that he lived in East Cowes for 8 years and used to walk the Allotments then but much more so since he moved to Whippingham.

16.1.8.3 He was able to speak as to the fences in the Football Field. He said that until the 12^th June 2003 the rear access from Beatrice Avenue was fully open and there was no wooden fence at the bottom. Then the lower fence was put in. It was a large wooden fence. He remembered the gate from Beatrice Avenue being left unlocked more or less the whole time. He thought that a lady who lived in “Truckles” asked for the gate and fence to be made more secure.

16.1.8.4 As to his use of the site, his questionnaire refers to daily use since he moved to Whippingham Heights and weekly use prior to that. He is a dog walker. In addition, He collects wild fruit and mushrooms in season.

16.1.8.5 Although untested in cross examination, I see no reason to doubt that Mr Le Goff regularly uses the field for dog walking and his evidence about the state of repair of the fences was corroborated by my own inspection which revealed some fairly recent work, including new-looking screws which I pointed out at the time.

16.1.9 Mrs Janet Hapgood

16.1.9.1 She and her Husband supplied a questionnaire[92].

16.1.9.2 She and her Husband have lived at Number 5 Barton Close, Whippingham Heights since the year 2000. She lists the activities carried on at the Site as “walking, picnicking, taking grandchildren to play at any time”. She said that they went there 4 to 5 times per week in the Summer time.

16.1.9.3 In her oral statement she said she used the field regularly with her grandchildren. Her grandsons lived on the Mainland and they liked to walk the Site on Summer evenings. They generally made use of it and no one ever stopped them. The gate was always open.

16.1.9.4 Mrs Hapgood’s use of the Site has only been since the year 2000. I am not clear how frequently her grandchildren visited but of course accept that she would have taken them there to play or picnic on occasions when they were staying with her. I do not interpret her statement as meaning that she took her grandchildren 4 to 5 times per week. Otherwise, I have no reason to doubt what Mrs Hapgood said.

16.1.10 Mrs Jean Merry

16.1.10.1 She wrote a letter and supplied a questionnaire[93].

16.1.10.2 She has lived at Number 6 Six Cottages, Alverstone Road, Whippingham since 1996. In her questionnaire she said “this field is an important part of our village and used by many people day to day. It must not be turned into a Trailer Park.” Mrs Merry’s view is thus partisan and while her opinion is one which is no doubt held by many local residents, I must be cautious about her evidence.

16.1.10.3 She said that she regularly walked the old Allotment field and picked blackberries and played with her grandchildren. She said she had never been stopped at any time and the gate had always been off its hinges in the years she used the site.

16.1.10.4 With the caveat I have mentioned, I have no reason to doubt that Mrs Merry has walked the field and played there and picked fruit with her grandchildren on a number of occasions.

16.1.11 Mr Graham Targett

16.1.11.1 He did not supply a questionnaire, letter or statement.

16.1.11.2 He is the Husband of Mrs Targett who gave evidence for the Applicant and whose evidence I have already mentioned.

16.1.11.3 He said that they moved to Whippingham in August 2002. He regularly walked his Wife’s dog mornings, afternoons and evenings and usually gained access through the South East corner of the site. As he was new to the district he asked a few people if it was all right to walk the Site and no one seemed to know who owned the land. When the signs saying “private property” were erected on the main road and the informal entrance from the South East corner was obstructed by the chain link fence and wooden posts he used to walk down the cornfield path and use one of two other informal accesses to the Football Field and walk around. He would then walk up the dividing hedge between the Football Field and Allotment Field and enter the Allotment Field through one of two distinct, well trodden pathways through gaps in the hedge and then go back out the same way. He was never challenged or stopped and never saw any other signs than those mentioned. He said he would have welcomed being challenged in order to find out who owned the land.

16.1.11.4 Mr Targett’s evidence about his access to the Site is somewhat at variance with his Wife’s. She said that the entrance he used was consistently obstructed with bottles and rubbish. I accept that Mr Targett was never challenged or stopped.

16.1.12 Mr Peter Legge

16.1.12.1 He supplied a questionnaire[94].

16.1.12.2 He lives at Number 5 Campfield Road, Whippingham Heights and has done so since 1989. Because his Wife is disabled he had limited time to go out but said he had always walked his dogs. He originally had one and now has two. He said that he regularly walked the field and had never been challenged. I have no reason to doubt what he told me.

17.0 THE APPLICANT’S WRITTEN EVIDENCE

17.1 In this Section I will consider the evidence in the form of questionnaires/ letters/ statements tendered by the Applicant, but whose makers were neither called to give evidence by the Applicant nor spoke as Interested parties at the Conclusion of the Enquiry. I shall treat this evidence with considerable caution. It was not tested by cross examination and in some instances was expressed in general terms. Thus, I cannot in general get a clear picture from this evidence on the part or parts of the Site that were used as opposed to those which were not for whatever reason.

17.2 Equally, it is not clear from the documents tendered over what period of time the maker has lived at the address given. This latter point is particularly important because it emerged during the Enquiry that a number of the Applicant’s witnesses eg. Mr Cox, Mr G Marlow, Mrs Lambert-Allen and Mrs Adams had all moved addresses during the period of their user of the Site. This was not disclosed in their written evidence. Nevertheless, I shall give the evidence of these witnesses such weight as I think proper, and draw such conclusions from their evidence as is appropriate. I should add that the general content of such evidence is consistent with other evidence called by the Applicant and it was not suggested on behalf of the Objector that any of these persons were deliberately telling falsehoods or seeking to mislead the Enquiry.

17.3 Of the 18 witnesses whom he originally intended to call, the Applicant called 10 (including himself) and Mrs Hewitt in addition. The remaining 8 who he did not call but on whose written evidence he relied were:

§ Mrs J Folkes

§ Mrs Thomas

§ Mr R Williams

§ Mr J Hapgood

§ Mrs V L’Anson

§ Mr R Norris

§ Mrs G Tobin

§ Mr A Woodward

17.4 Mr Hapgood and Mr Norris each made an oral statement as an Interest Party. Mrs Tobin assisted the Applicant in the presentation of his Case and conducted some of the cross examination. Of these 8 people 6 (including Mr Hapgood and Mr Norris) live in Whippingham Heights. Mrs Folkes and Mrs Tobin live elsewhere in Whippingham. I have already dealt with the statements of Mr Hapgood and Mr Norris. Mrs Folkes claims four years use of the site, mainly for dog walking[95]. Mr and Mrs Thomas claim the same use and over the same period[96]. They have also used the Site for bird watching. Mr Williams claims two years use as a resident of Whippingham Heights for the purposes of dog walking but describes it as “every few months . . . . . for taking neighbour’s dog for walk”[97]. Mr and Mrs L’Anson claim use since November 2000 for dog walking[98]. Mrs Tobin claims use since 1988[99] and Mr Woodward since 1982[100]. In his case for “recreational walking”. I am not quite clear why if he started using the land in 1982 he only used it regularly for the last 13 years and I note that he assumed that the paths around the perimeter were Public Rights of Wayap. From that I draw the conclusion that he probably stuck to those paths.

17.5 The Applicant also tendered certain evidence as “Expert” evidence concerning the locality for the operation of the Flagellation Rigs. I have already dealt with the evidence of those witnesses he called namely: Dr Fryer, Mr Pugh-Panther, Mr Hames and Mr Newnham. The remaining 3 witnesses were Mr Blanchard[101], Mr Marchant[102] and Mr Eldridge[103]. Mr Blanchard and Mr Eldridge dealt with the operation of the Flagellation Rigs. Mr Eldridge also dealt with people gaining access to the Site. Their evidence was really qualified by the evidence of Dr Fryer and I do not propose to say anything further about it since neither statement adds anything to Dr Fryer’s evidence. Mr Marchant dealt with the damage to the Whippingham Road gate. His conclusion was that it was impossible to determine how the damage had occurred. I do not think that his evidence adds anything to other better evidence before the Enquiry.

17.6 I then turn to the statements of the 34 witnesses whose written evidence the Applicant tendered. Of these, one, namely Mrs Hewitt[104], was called by the Applicant as his last witness. A further 5 namely: Mr Le Goff[105], Mr Legge[106], Mrs Merry[107], Mr Allen[108] and Mrs Luckett[109] made statements at the end of the Enquiry. The remaining 28 were not called and did not make statements. Taking the 34 as a whole 8 lived within Whippingham Heights. These are:

§ Mr Blackman[110]

§ Mr Legge

§ Mr Allen

§ Mr Busby[111]

§ Mr Payne[112]

§ Mrs Richmond[113]

§ Mrs L Smith[114]

17.7 A further 6 lived elsewhere in Whippingham. These are:

§ Mrs David[115]

§ Ms Ford[116]

§ Mrs Raven[117]

§ Mr Thorne[118]

§ Mrs Hewitt[119]

§ Mrs Luckett

17.8 Of the remaining 20 witnesses 19 gave their addresses as East Cowes. I shall not list them because on any showing they live outside the relevant locality or neighbourhood as the case may be. The final witness Mrs Othen[120] did not give any address and it is impossible to determine from her statement where she lives.

17.9 I shall refer briefly to the evidence of those witnesses who live within Whippingham or Whippingham Heights. Mr Blackman claims approximately 4 years use for walking, blackberrying and mushrooming. Mrs David lives in Beatrice Avenue and I treat her as a Whippingham resident although she gives her address as East Cowes. She claims 28 to 30 years of use of walking, blackberrying, kite flying, mushrooming and watching wild life 3 to 4 days per week. Ms Ford claims 8 years use largely for sketching and drawing. Mr Legge claims use since 1989 for dog walking 2 to 3 times per week. Mrs Merry claims 6 years use for walking and playing with children. Mrs Raven claims use from 1962 to 1982 and again from 1992. The usage she claims is dog walking and family outings.

17.10 Mr Thorne has lived in Whippingham for all the 74 years of his life. He says it has been regarded as an area to roam freely in either to just to go for a walk or to pick blackberries, mushrooms and exercise pets. I have already mentioned the evidence/statements of Mr Allen, Mrs Busby, Mrs Hewitt, Mr Le Goff and Mrs Luckett in the relevant Section of this Report. Mr Payne claims use since 1986 for the purposes of dog walking and playing with his grandchildren. Mrs Richmond refers to the Allotments and said that she and her Husband had one of the first Allotments for approximately 4 years after which they would use the Site as a place for walks, blackberrying and enjoying the countryside. I note in her case that she objected to the designation of the Site for employment purposes in the UDP[121] but made no mention of the Site as recreational land. Mrs Smith claims 29 years use for “walking with her children”. No other details were given.

18.0 THE AERIAL PHOTOGRAPHS

18.1 In Section 4 of his Final Submissions the Applicant sought to introduce for the first time two aerial photographs taken during the course of a Cambridge University Survey in October 1986. He also sought to introduce a third aerial photograph of the piggeries taken in 1969. He also referred (para. 4.18) to a 1993 Aero Films Photographic Survey of the Isle of Wight and made comments on what he claims to have seen by an examination of such a colour photograph. He did not however tender any copies of such photograph. All this material was available to the Applicant prior to the Enquiry and, on his own Case, he elected not to introduce it in evidence or put it to any witnesses in cross examination.

18.2 Not unnaturally, Counsel for the Objectors in her reply to the Applicant’s Closing Submissions, submitted that I ought to exclude altogether any consideration of these aerial photographs. In his Response to that reply the Applicant referred to Regulation 3 (7) (d) (ii) of the Commons Registration (New Land) Regulations 1969. The latter Regulation provides for the supply of such further evidence, if any, as, at any time before finally disposing of the Application, the Registration Authority may reasonably require. I certainly did not require the provision of the aerial photographs and did not know of their existence until receiving the Applicant’s Closing Submission. It is in my Judgement thoroughly unfair and unsatisfactory for one party to produce evidence after the Conclusion of the Enquiry and at a time when the other Party, having had no notice of it, cannot question or rebut it. I do not think it requires any legal acumen to realise that. No doubt if the Objector had sought to introduce fresh evidence in their Closing Submissions the Applicant would have objected strongly.

18.3 My first instinct was to reject this evidence altogether. However, I remind myself that Mr Lawrence QC at the Directions Hearing on December 5^th, 2003 pointed out that I could not exclude any material evidence, even if it was tendered after the time limit which I proposed to lay down in my Direction. He submitted that as Registration Authority the Isle Wight Council had a duty to consider all potentially relevant material before making the decision whether or not to Register.

18.4 Having considered the point carefully, I conclude that I should take some limited account of the 3 aerial photographs tendered but none of the 1993 photographs to which reference was made by the Applicant but which he did not tender along with his Submissions. I make it clear that I have not seen and not called for the latter photograph. However, I shall use the first photograph only for the purposes of locating the Site in relation to surrounding sites eg. Osborne Works, Whippingham Heights, the Football Field and Beatrice Avenue. I am asked by the Applicant to infer that the dark patch on photograph number 2 is evidence of former Allotments and to draw inferences from that photograph as to the number of years since the Allotments were last used before the photograph was taken. I declined to do so. I have no sufficient evidence before me to draw any such conclusion.

18.5 I am also asked to conclude that the surface of the Site was unimproved grassland with tussocks of grass but which remains largely open and accessible to the public. Again I declined to draw any such inference from these photographs which were not the subject of any expert analysis or evidence. Finally, I am asked to draw conclusions from the third photograph as to the date when the piggeries fell into disuse and/or were dismantled. I declined to do so on the strength of that photograph which again was not the subject of any expert evidence. I am however prepared to assume that the photographs were taken in October 1986 and 1969 respectively. Otherwise, I derive little or no assistance from them.

19.0 THE EVIDENCE FOR THE OBJECTOR

Introductory

19.1 The Objector GKN Aerospace Services Limited (“GKN”) called 9 witnesses and submitted statements from a further 3. She called the following:

§ Ian Mark Janes[122]

§ Richard George Rann[123]

§ Barry Deeming[124]

§ Michael Graham Haile[125]

§ John Michelmore[126]

§ Michael Christopher Marlow[127]

§ Peter Harry Hernes[128]

§ Kenneth Gill[129]

§ Peter Scott[130]

19.2 In addition, she tendered the statements of the following:

§ Paul James Brownrigg[131]

§ David Reginald Peter Elsley[132]

§ Kenneth John Line[133]

19.3 In the case of the latter 3 statements I shall bear in mind that they were untested by cross examination and I should be cautious about giving them undue weight. It is perhaps unfortunate that these 3 were not called since they were all potentially important witnesses of fact for GKN.

19.4 Before dealing with the evidence given on behalf of GKN I must deal with one further matter raised by the Applicant for the first time in the course of his Final Submissions. In those Submissions and in particularly in Section 2, the Applicant sought to mount a serious challenge to the integrity and veracity of some of the evidence tendered by GKN and at one point appeared to be suggesting that some of the witnesses had been coached by Mr Hernes to give evidence which suited GKN’s case. He also suggested that there was a degree of collusion between witnesses who were present or former employees of GKN and that certain of the documents eg. maps had been altered at a later stage.

19.5 None of these allegations were put to the witnesses for their response during the course of the Enquiry. The Applicant is of course entitled to conduct his Case as he thinks fit and I would not have criticised him if he had chosen to mount this line of attack during the Enquiry and at the time when the witnesses concerned could answer any allegations put to them. However, such allegations were not put to the witnesses during the Enquiry, and I therefore have to make a Judgement as to their credibility and integrity on the basis of my own recollection of their demeanour during the giving of evidence.

19.6 For my part, I must say that I could not detect any signs that these witnesses were giving evidence under the undue influence of Mr Hernes or anyone else from GKN, nor could I detect any indication that any of them had been coached in their evidence. It may be that the Applicant is not used to conducting legal proceedings and it may have appeared to him that there was a degree of collusion between GKN’s witnesses which disquieted him. However, the mere fact that witnesses who know one another and can be presumed to be on friendly terms, sit together during the Enquiry and talk to one another during the Adjournments does not in my view constitute any ground for casting doubt on their evidence. Nor is it necessary or usual in an Enquiry (and indeed in many Court Cases) for witnesses to be separated from one another before they have given their evidence. Equally, I do not regard as suspect the fact that there is a degree of consistency as between the different witnesses of GKN.

19.7 Notwithstanding the contents of the previous paragraph, I shall deal with the evidence of the GKN witnesses individually and where appropriate say where I do not accept the whole or any part of their evidence. I shall review the evidence of GKN’s witnesses in the order in which they were called.

19.8 Ian Mark Janes

19.8.1 He made a statement[134].

19.8.2 Summarising his statement briefly he has been a Building Contractor for 20 years and done work for GKN at the Osborne Works Site for about 12 years. At the request of Mr Hernes he has carried out general repairs to fencing, cut down trees and generally kept the Site in repair. He repaired the Whippingham Road gate in the Spring of 2003 when it was lying flat on the ground. He placed it back on its hinges and locked it with a chain and padlock. A week later he was told by Mr Hernes that the gate had been pushed over again apparently by a vehicle. He did not repair it that time. He has run strands of barbed wire across the holes in the hedges caused by people entering the Site by that means and erected some concrete post and chain link fencing at the South East corner of the Site where it meets the footpath on the Whippingham Road. He said that in the 12 years he has worked on the Site he has only seen a few dog walkers or trespassers on the site. He does however agree that a number of people use the Football Field to the South of the site.

19.8.3 He was briefly asked by Counsel for GKN about the repairs carried out by him and said that on each occasion he carried out the repair requested by Mr Hernes. He identified the invoice[135] as relating to the two crosses marked on the plan[136] adjacent to the Public Footpath.

19.8.4 He was cross examined. He said that he was self employed and GKN was not his only client. He said that it was a fairly important commitment over the past 13 years and on average he carried out work for GKN once per week. He wasn’t aware of the sign advertising this application and certainly saw no sign on the Whippingham Road gate. He was approached by Mr Hernes for a statement and wrote one based on what he had done on the land. He was referred to the photographs taken on 19^th January 2003 in the Applicant’s Bundle[137]. He said that they represented the beginning of the repair works at the South East corner but he couldn’t say whether the concrete post at the corner was linked to any others. He personally didn’t do the work but it was carried out by his men.

19.8.5 So far as he knew holes were dug the concrete posts were put in and wire was attached to the new posts. Sometimes he suggested to GKN what was needed to be done and agreed that he had worked on the Osborne Works Site itself. He was not paid any retainer by GKN. He said that he himself pointed out where the crosses should go on the plan[138]. He was referred to a photograph in the Applicant’s Bundle[139]. This was of the Whippingham Road gate taken in June 2002. At that time the gate was apparently ajar. He said that his observation was that the gate was shut most of the time. He repaired the post shown on the right hand side of the photograph because it had been snapped off through age. He put the post and chain back on the gate and a wooden post inside that as a temporary repair. He was referred to another photograph of the gate in the Applicant’s Bundle[140]. He thought that the fracture of the wooden post could be accidental or simply through age.

19.8.6 He said that he didn’t spend a lot of time on maintenance to the Site although he had closed it off on two occasions. He thought that the hinge to the gate might have been broken or bent. When referred to another photograph[141] he said that he did the repair in the top left hand of the photograph shortly before the date on which the photograph was taken. He could see no signs of any post in the two lower right hand photographs. The repairs to the fence adjoining the footpath were carried out near the corner.

19.8.7 He couldn’t remember whether the gate was off his hinges in 1995 but remembered a couple of previous repairs when the bottom hinge of the gate was broken. He thought the gate was always closed other than when it was lying on the ground. He thought the conifers along the Whippingham Road boundary had been planted before he started working for GKN. He thought that the gate had been off its hinges on two previous occasions which he could not now date. However, he thought that one could not remount the gate in the hinge open position without putting the sliding bolt back through its slot.

19.8.8 I reject any suggestion that Mr Janes’ evidence was coloured to suit the requirements of GKN. However, the only documentary evidence of repairs produced by Mr Janes is the invoice to which I have referred[142]. I am surprised that in view of Mr Janes’ evidence a full schedule of all the repairs and invoices relating thereto was not produced. As it is, I am left with the impression that repairs and maintenance to the hedges and fences of this Site were carried out sporadically and on a piecemeal basis. I think there was a fairly casual arrangement between Mr Janes and the GKN Management and no proper systems for inspecting, maintaining and repairing the boundaries. Finally, I am unable to accept Mr Janes’ evidence that the Whippingham Road gate was usually shut. I have an abundance of evidence from other witnesses, which I accept, that the gate was frequently left open.

19.9 Mr Richard George Rann

19.9.1 He made a statement[143].

19.9.2 Summarising his statement, he said that he was employed by GKN or its predecessors between 1970 and 2001. During the 1990’s he was a Principal Facility Engineer and his responsibility included the site, its plant and machinery. He remembered part of the Site being given over to Allotments in the late 1970’s and he rented one half of one Allotment for a period of a year in or around 1980. He identified by reference to a plan[144] the area covered by the Allotments as being roughly the left hand side of the Site when viewed from the central path he said the quality of soil was very poor and the Allotments soon returned to nature.

19.9.3 During 1995 or 1996 he was instructed to clear the Site and reseed it. The Site was then overgrown with brambles and weeds and Symes Brothers, agricultural contractors, were employed to clear the bramble and to reseed the whole area with rye grass. During one Winter he arranged for the Site to be grazed by Mr Brownrigg’s sheep, first on one side of the Site and then on the other. The sheep were fenced in with an electric fence and he thought that when the sheep were in the field the electric fence stretched right to the boundaries thereby preventing members of the public walking them. He saw the odd person on the Site but not regularly. Most of them were dog walkers. In one corner of the Site near the present main gate people were in the habit of pushing through the hedge and then walking back towards the Whippingham Road gate and down the central path. Importantly, he said that had GKN not employed to cut the grass it would have been impossible for people to walk over the land as it was overgrown with brambles and weeds.

19.9.4 Every year since 1996 he cut the hay from the Site using a mower and baler and with the permission of GKN takes the hay crop each year at the end of June. This arrangement has continued although he left the company in 2001. He cuts the grass only once a year in order that it should be long for making hay. The company is happy for this to happen so as to minimise any fire risk.

19.9.5 He remembered the Flagellation Rigs being in operation and the company receiving complaints from people on the Whippingham Heights Estate by the noise. He thought most people who used the Site parked their cars in the layby near the footpath and then let their dogs run on the site. Between 1989 and 1999 he went to the Site two or three times a month and never saw more than two people on the Site at any one time. He recollected seeing GKN staff carrying out repairs to the fences from time to time and in particular after 1997 when the new entrance was built.

19.9.6 In evidence he said that when he cut the grass he turned it a couple of times with a tractor and then baled it with his bailer. The process took between 5 days and 3 weeks in all. He used the bales as feed himself and sold the rest. He thought it was of quite good quality if cut at the right time and not with an excessive weed content. He left bales on the field in 2002 when they were ruined by rain.

19.9.7 He got his equipment in and out through the main gate he remembered it being broken but denied causing any damage when taking his equipment through. He never saw any people walking their dogs when there were sheep in the field and didn’t remember any rubber insulation being placed over the electric fencing. He did however remember people walking the Site when he was baling the hay. They had their dogs with them and simply avoided his machinery. He thought the walkers tended to walk the main footpath down the middle of the Site as the rest of the Site was overgrown.

19.9.8 He was cross examined. He said he worked for GKN for 32 years until he was made redundant along with many others in 2002. He has a company pension. He now carries on business as a builder. When cutting and baling the hay he does this once each year and the process takes between five days and 3 weeks using his own machinery. He thought the sheep were in the field for 6 weeks in January 1999 and were grazed in rotation. They were probably there at the end of January.

19.9.9 He was referred to the Schedule of Flagellation Rig operation times[145] and agreed that it appeared there were three occasions in late January 1999 when the Rig was in operation. The inference I draw from this is that sheep were probably in the field when the Flagellation Rig was in operation and, on Mr Rann’s evidence, may well have been in the right hand part of the field. That gives me an indication as to the degree to which the operation of the Rig would or would not have deterred walkers. He said that he cut the grass because GKN had asked him to clear the field in 1995 and he could use the grass as a cash crop. With reference to paragraph 9 of his statement he said that it wouldn’t have been quite impossible to walk the field before it was cleared and reseeded but it would soon have become so if the ground had not been cleared. He didn’t think that the object of seeding the Site with grass was with a view to a crop but with a view to keeping the field looking tidy against any future development plans.

19.9.10 He was referred to the photographs in the Applicant’s Bundle[146] and didn’t recognise what was depicted. He didn’t recall many dogs or people with dogs walking the field. He thought the Rigs sprayed water 30 metres from the fence but couldn’t say why he had referred to salt water being sprayed in his statement. He didn’t think the sheep would have been worried by the operation of the Rigs.

19.9.11 He remembered his tractor being damaged. The glass windscreen was broken and the tyres were let down. He didn’t know who had done it or indeed when precisely the damage had occurred other than when the tractor was in the Football Field one June or July.

19.9.12 He shared his Allotment with Frank Palin. He thought that there were Allotment Holders left long after he had gone. He thought the majority of Allotments were still being worked when he gave his half up. Most of them were half way up and of the central track on the left had side. He didn’t know how many Allotments there had originally been. By the time he came to work for the Facilities Department in 1989 the Allotments had long gone.

19.9.13 When the field was cleared in 1995 everything was cut down. The roots were removed, the ground was turned over on both sides of the track and then reseeded. There was a grass cut in the first year, although there hadn’t been much growth. The clearance was in early Spring.

19.9.14 Although Mr Rann was somewhat gruff in his manner when giving evidence, I saw no reason to disbelieve the substance of what he was saying. Prior to 1995 or 1996 when the Site was reseeded I accept his evidence that the Site had become rather overgrown with brambles and weeds which would have been a deterrent to walkers from straying from the paths, and if the Site had not been cleared would soon have become so overgrown that walking would have been impossible. I think that the whole character of the Site changed after it was cleared and reseeded in that whereas it had previously been overgrown and unkempt, subsequently it was largely given over to rye grass which was cut once a year. Importantly, no one sought to interfere with the clearing or reseeding operation or indeed to prevent or impede the cutting of the grass each June between 1995 and 2002.

19.9.15 I accept that people continued to use the Site but avoided the machinery. I accept Mr Rann’s evidence about the sheep being grazed in the right hand half of the field at a time when the Flagellation Rig would have been in operation and I think that that is an indication that the noise and spray would have had a limited effect on people using the field. However, in view of the evidence of others which I accept, I think Mr Rann is mistaken in his memory when he said that walking in the field was impossible because the electrical fence ran right up to the boundary. I think that walkers could then use the Site and did so but were confined to the path close to the boundary when the electrical fence was insitu. I think it significant that Mr Rann observed few people when he visited the Site two or three times a month between 1989 and 1999. It may of course have been because dog walkers tend to walk in the early morning and the evening but I also think that the condition of the Site up until 1995 or 1996 did not lend itself to extensive walking other than via the footpath. He was not asked whether the number of walkers increased after the Site was cleared and I am not able to make any Finding in respect of that matter.

19.9.16 I accept that the purpose of sowing the grass was not with a view to creating a crop but equally do not think on the basis of Mr Rann’s evidence that the purpose was to improve the facilities of the Site for local people using it while its status as a Village Green was emerging. I think the same comment applies to the cutting of the grass as to the seeding of the field. The ultimate purpose was to keep the Site in a tidy condition against future development and to provide a crop in the meanwhile which, if not of very high quality, was of adequate quality to feed to horses. This is evidenced by the fact that Mr Rann kept some back for his daughter’s horse and sold the rest.

19.10 Mr Barry Deeming

19.10.1 He made a statement[147].

19.10.2 Summarising his statement, he is a Chartered Surveyor and has been the Group Estates Manager for GKN for nearly 23 years. He has known the Site for 10 years following GKN’s acquisition of The Westland Group in 1994. He said that the Site is currently owned by GKN Aerospace Services Limited (formerly known as British Hovercraft Corporation [BHC]}, a wholly owned subsidiary of GKN. In turn, the Site was acquired by BHC from Westland Aircraft Limited in 1969, who in turn first acquired the land back in 1961 upon its acquisition of Saunders Roe Limited which had first acquired the land from The Crown Estate in 1957.

19.10.3 He produced a copy of the relevant Sheet from the Isle of Wight Council’s Unitary Development Plan (UDP) which was formally adopted by the Isle of Wight Council on the 18^th May 2001. The Plan[148] identifies the Site as “E5 912)”. The relevant section of the UDP[149] identifies the Site as Employment Land and as suitable for high quality uses within Use Classes B1, B2 and B8. The Council identifies the land as being “made up of land previously used as private Allotment gardens.”

19.10.4 Mr Deeming checked on the objections to the initial Review of the UDP in 1996 through to its formal adoption in 2001. There was only one objection to the allocation of the Site for Employment purposes by any one of the people who now claim to have used it as a Village Green. That person was Mrs Richmond of 17 Barton Close, Whippingham Heights and her objection was annexed to Mr Deeming’s statement[150]. However, no reference in that objection was made to the loss of recreational land. Mr Deeming also produced an Officers Report to the then Medina Borough Council Planning Committee[151] dated the 10^th October 1989. The Application was made to Medina as the relevant local Planning Authority for the redevelopment of the Osborne Works Site, including this site. Although representations were received from local residents[152] none apparently related to the loss of the use of the land for recreational purposes.

19.10.5 In evidence Mr Deeming confirmed that E5(12) incorporated the Site and that there were no more than six objectors to the Draft UDP, all of which related to its allocation as potential Employment land. The 1989 Planning Application was made before Westland had been acquired by GKN and was one of a number of alternative proposals. He thought it significant that none of the representations then made referred to the loss of recreational land.

19.10.6 He was cross examined. He said he was not employed by GKN but managed their real estate holdings. When he received the Notice of Application to Register this Site he came to investigate. Mr Lines was responsible for the site. His researches had revealed leases of the piggeries in 1975 and 1977.

19.10.7 In answer to questions from me he said that the Osborne Works Site was the Research and Development Wing of the GKN Facility at Cowes. No manufacturing is carried on there. It is purely a Test Facility and an Engineering Workshop for Research and Development. There is no current Planning Application by GKN in relation to the Allotment Field but there is a current Planning Application by Red Funnel or Vectis Transport to use a small section of the Site as a Trailer Park. That Application was made with Mr Deeming’s knowledge although he stated that there was no agreement in place between GKN and Red Funnel to use the Site as such if Permission were granted. The purpose of such use would be to relieve traffic pressure at the East Cowes Terminal. GKN had no objection to the Planning Application and if it succeeded it might lead to a short term licence or lease between GKN and Red Funnel but not to any long term arrangement. He stressed that it related to a small section of the Site and GKN would in any event wish to have some higher quality development at the Site at some time in the future.

19.10.8 In all less than one quarter of the Site would be used and it would be that portion closest to the Osborne Works. No discussions have taken place yet between GKN and Vectis and there was no draft licence or lease in existence. Access to the Trailer Park would be via GKN’s own access and the existing access would be stopped up. GKN have made no objection to the Planning Committee to such an arrangement. He confirmed that GKN do have a long term use for the Site in mind as owner and occupier but was unwilling to say at the moment what that proposed use was for reasons of commercial confidentiality. It was within the Public Domain that GKN were proposing to expand its Research and Development Facility to include compoSite materials. He thought that GKN’s Objection had been made in due time although it appeared to have been rather late in the day.

19.10.9 Some point was made by the Applicant that Mr Deeming’s statement appeared in signed form only at a late stage, but I accept that there is no sinister reason for this. Mr Deeming appeared to me to be a straight forward, helpful professional witness who explained the current status of the land and the history of its ownership and its Planning history. I think Mr Deeming’s evidence about the objections to the Planning Application in 1989 (or lack thereof) and the objections to the Draft UDP between 1996 and 2001 is significant. I ask myself this question. If the Site during the whole of this period was being used in the manner and to the extent suggested by the Applicant, would one not have expected a completely different picture to have emerged of a substantial of residents, particularly those from Whippingham Heights, raising serious objections to the loss of a valuable recreational site. Equally, it appears to me as it appears to Mr Deeming that it was the publication of the Red Funnel/Vectis Transport Application to use part of the Site as a Trailer Park which prompted so much local interest and objection.

19.10.10 It is not without significance that the Applicant in his opening remarks made it perfectly clear that local people did not want a Trailer Park on the Site and were supporting his Application so as to frustrate Vectis’s plans. That is a perfectly understandable stance for the Applicant and local people to take, but I must judge the credibility of their evidence against the largely unchallenged background evidence from Mr Deeming.

19.11 Mr Michael Haile

19.11.1 He made a statement[153].

19.11.2 Summarising his statement, he worked at GKN between 1964 and 2003. He first remembered the Site as being a smallholding leased out to a pig farmer and that the central track ran to the pigsties. He thought that the pigsties did not exist after 1970. When he was an apprentice at the Osborne Works in the 1960’s he lived there in a dormitory and could see virtually the whole of the Site from the window. He never saw any walkers but only GKN employees or Allotment Holders when the scheme started in the 1970’s. He thought that the holes in the hedge which he marked[154] were as a result of hedge fires started by children. As a result people started to force their way through from the Football Field behind the site.

19.11.3 He remembered the beginning of the Allotments scheme in the late 1970’s. He referred to the Allotments being to the right of the track but it is clear from the plan that he means the left as one approaches from Whippingham Road. He thought that 20 or 30 people were interested in the idea at the beginning and that the Allotments were on that side of the track so as to avoid interference with the operation of the Flagellation Rigs. Importantly, he said he had his Allotment for 5 or 6 years commencing in the late 1970’s and ending in the Autumn of 1983. He could be sure about this because his daughter was born in the Spring of 1984 and he gave up his Allotment in the preceding Autumn in order to give his spare time to his Wife and child. He grew vegetables, potatoes and other produce on the Allotment and was not concerned about trespassers which he would have been had there been many of them. The only access to the Site was via the main gate along Whippingham Road. He referred to the footpath that ran from Whippingham Road to Beatrice Avenue and adjoining the Farmer’s field to the South of the site. He identified Mike Marlow, John Higgs and Ron Shin as other Allotments Holders and he ran the Flagellation Rig operation until 1993.

19.11.4 He recollected moving from Whippingham to his present house in East Cowes in 1984. His former house was close to the Site and he remembered that when the Rigs were in operation the windows would rattle. As an operator he wore ear protectors. He said that he hardly ever saw anyone on the Site during his time there and dog walking only began after the Allotments had finished and when the ground was thrashed and laid to hay in about the late 1980’s. (His memory is clearly defective as to the date of the ground clearance). He thought that Mr Reg Pink was the last Allotment Holder and he left in 1984 or 1985. He thought that the fences were in reasonable condition and maintained by GKN. The only access was via the Whippingham Road gate.

19.11.5 In evidence he said that he wished to change his recollection of the date when the piggeries ceased so that paragraph 4 read “from 1964 to 1990” rather than “from 1960 to 1970”. He thought the piggeries ultimately fell down after the hurricanes. (These occurred in 1987, 1990 and 1991). He grew potatoes on his Allotment and was clear that he gave up in about September 1983. At that time there were roughly 4 to 6 people who still held Allotments at the piggeries end. He thought that only a third of the original Allotments were being worked in 1981. He was referred to the plan in the Applicant’s Bundle[155] and couldn’t remember whether the remaining Allotments were within the red rectangle there shown. His own was close to the road, only about 3 in from the entrance. He remembered other Holders as Mike Marlow, Reg Pink (who had the one behind his) which contained fruit bushes, Elaine Rice, Tony Davison and another person who lived in a caravan park. He also remembered James Fisher and Colin Weekes but couldn’t remember Mrs Richmond, Mrs Leggatt, Mr Appleton or Mr Castle as Allotment Holders.

19.11.6 He remembered the noise from the piggeries when he was an Apprentice living in a dormitory in the late 1960’s. When he lived at Mike Marlow, John Higgs and Ron Shin Heights at Number 6 Barton Close his kitchen faced the Site and the kitchen window rattled when the Rigs were working.

19.11.7 He was cross examined. He started with Saunders Roe (as it then was) in 1964 and retired in February 2003. He confirmed that he had a company pension. He also confirmed that he was made redundant. He knew nothing of the present Application until he was approached by GKN for a statement. He couldn’t remember who the person who approached him was.

19.11.8 He thought the pigs went from the Site in 1982 or 1983. He remembered a friend looking after them until he left GKN in 1982 after which the pigs stayed for a further six months.

19.11.9 He thought there were about 40 Allotments originally. He was challenged about the age of his daughter and initially hesitated, stating that she was either 20 or 21 in March 2004. However, the daughter was his only child and he maintained, after initial hesitation, that she would be 20 in March 2004.

19.11.10 He thought that one could not walk within 50 feet of the Blower when the Rig was operating because of the spray. It took approximately a quarter of an hour to set up the Rig and there was a scaffolding tube which was used as a guard rail. There were no warning notices around the Rig.

19.11.11 He thought the holes I the hedge consequent on the fires set by children were caused in about 1982. He did not remember seeing any walkers on the Site during the 5 to 6 years he had an Allotment. When his reference to the ground being thrashed in the late 1980’s was queried he corrected that and said that he meant the 1990’s.

19.11.12 Re-examined, he said that he was sure that he grew potatoes until September 1983. Also he grew rhubarb. After his daughter was born he went back to have a look at the Allotment and it was not in a good state then. When he was working his Allotment he went up most lunch times and two or three evenings in the week. He probably also worked there on a Saturday morning or afternoon in the growing season during March and September. He confirmed that he had one child, a daughter who would be 20 in March 2004.

19.11.13 Mr Haile’s memory was clearly defective in respect of some matters eg. the date when the piggeries fell down and when the Site was cleared and reseeded. However, when the errors were pointed out he readily admitted them and corrected them. I have considered carefully what was said about Mr Haile’s evidence in the final Submissions of each party. I have to decide whether I accept Mr Haile’s evidence that he gave up his Allotment in the Autumn of 1983. As with many people who have difficulty in remembering dates in the abstract, particularly in relation to events which occurred many years ago and bore no particular significance at the time, Mr Haile’s memory clearly failed him in relation to the two matters I have mentioned.

19.11.14 However, it is within the experience of many who have to decide these things that witnesses whose memories as to date are in general less than reliable can be relied upon when they can tie a particular but non significant event to another event which is of considerable significance to them. The birth of his only daughter was clearly a landmark event in the life of Mr Haile. In spite of his hesitation when first asked, Mr Haile became clear that his daughter would be 20 within a few weeks after the Enquiry closed. He affirmed this evidence in re-examination. I think Mr Haile’s initial hesitation was consistent with his hesitation when the other two incorrect dates were put to him. He willing corrected those and I would have thought if he had any doubt about the year in which his daughter was born he would have corrected that as well. He did not and I am satisfied that his daughter was born in the Spring of 1984 and that he gave up his Allotment in the Autumn of 1983.

19.12 Mr John Michelmore

19.12.1 He made a statement[156]. That statement was amended in manuscript by Mr Michelmore and signed by him on the day before he gave evidence.

19.12.2 Summarising his statement, he was the Head of Test Facilities Department at GKN between 1985 and his retirement in April 2000. His office was on the first floor of the building overlooking the Site and he marked it on the plan attached to his statement[157]. He used to get into his office around 7.30 am and recalled seeing perhaps 6 or 8 people walking their dogs in the field at that time of day. He thought the same people each day although he could not identify them because of the distance he was from them. It appeared that they entered by the Whippingham Road gate and let their dogs off the lead to run over the field. The owners usually walked along the central track to the piggeries and then via a gap in the hedge to the field behind. The people never ventured off the track because the rest of the field was covered in thistles, tall weeds and course grass which was knee high. The ground was very uneven and it would have been uncomfortable to walk on it; He sometimes passed the Site during his lunch break and again he would see 4 to 6 people walking their dogs in the same manner as in the morning.

19.12.3 He was one of the Allotment Holders up until the end of 1981 and thought that the Allotments continued for another year after that. He didn’t remember seeing anyone on the area of the Site near his office which he attributed to the presence and operation of the Flagellation Rig. He remembered the pigsties which he thought were occupied by pigs until about 1983 and he recalled one or two people flying model aircraft on the Site but they were employees of GKN who had received company permission to do so. The pigsties were in a bad state of repair and he thought they collapsed in about 1990. All that was left was the concrete base, a few bricks and some sections of corrugated plate. He remembered Mr Rann cutting the hay crop from the field from about 1997 onwards but didn’t think the hay was of very good quality as it contained thistles, weed, brambles and coarse grass.

19.12.4 In evidence he said that he was involved with the Test Rigs from 1977. He looked at the Report[158] and confirmed that that related to Rig 29 which ran continuously from 1978. The two other Rigs terminated in 1989. [I should here add that he demonstrated by reference to the plan[159] that Rig 28 was located a little to the West of Rig 29 and Rig 41 was located further West still and on the far side of the building behind and to the West of Rig 29. In other words Rig 28 and Rig 41 were at oppoSite ends of the same building.] He was referred to the Applicant’s Bundle[160] and confirmed that that was a list of the Hovercraft built at the Cowes Facility. He said that the Rigs were run a lot more in the earlier years and in the evenings. GKN received complaints about noise from residents and used hay bales as noise baffles. He was referred to a Table in the Applicant’s Bundle[161] and said that the Rigs were used very frequently at an earlier stage than the earliest date in the Table (February 1989) because there was a lot more development going on at that stage. Rig 41 discharged a great deal of water at 90º. Rig 28 was used for testing Skirt competence eg. hinges, liners and bushes and GKN were trying to determine the load factor on the Skirts. Pins would be put through holes into bushes to hold the Skirt in place on the Hovercraft and hinge liners would occasionally break away from the Skirt during the testing process.

19.12.5 It was critical to the test procedure to determine how the Skirt could be reinforced to prevent this. Accordingly, Mr Michelmore had numerous accelerometers attached to the surface of the Skirt material and patch transducers which were designed to measure strain gauge extension. They were losing a number of instruments during the test process because they were metallic and were thrown out into the field if they became dislodged from the Skirt material. Accordingly, Mr Michelmore had a 20 metre by 15 metre tarpaulin erected on the field to collect such instruments and so that they would not get lost in the long grass. He described an accelerometer as being a 1 inch metallic cube with instrumentation inside.

19.12.6 He said that some American Hovercraft users came over for test work to be done on their Hovercraft including Wind Tunnel and Tank work. He described “an ongoing battle” to maintain the Hovercraft skirts in the early 1980’s. GKN had a contract to supply military vehicle carriers in 1982 and the Canadian Coastguard also had some similar Hovercraft. The serious test work started in the mid 1970’s. The American contract lasted initially for 1 year and they came back again in 1986 for another year. Rig 28 ceased its operation in 1987 and tests were then done in Number 3 Tank. He confirmed that all the external test work was done within the Facility. Rig 29’s velocity was 405 feet per second and was primarily used for testing Skirt material and on occasions for testing hinges. The velocity of Rig 41 was 480 feet per second. The velocity of Rig 28 was 260 feet per second and was used for testing long sections of Skirt which had been soaked in salt or fresh water.

19.12.7 The object was to recreate operating conditions and the tests were filmed. Rig 29 used fresh water from 1990 onwards and the material for the Skirt was soaked for 24 hours beforehand. Between 1980 and 1990 he described an on and off process in which oil, engine fuel and salt water were mixed to create operating conditions. Fresh water however was always used on the spray for which there was a set procedure. He said that all the entries on the relevant page of the Applicant’s Table[162] related to Rig 29 which was used much more in earlier years. From 1990 its use started to tail off. [This is confirmed by the records]. The further one went back the more use one would find. Rig 41 finished in about 1986 and Rig 28 in 1987 or 1988. GKN would not use more than two out of three Rigs at the same time during that period. Between Rig 29 and Rig 41 there was a Vibrator which created high frequency noise and it was not very pleasant to be near it.

19.12.8 He said that he gave up his own Allotment at the end of 1981, at which time there were 6 Allotment Holders left. He had held his for just over 1 year. He thought other people continued to the beginning of 1982. Elaine Rice grew fruit trees, Mike Haile was one who hung on to the end along with Reg Pink and Terry Bennett. He said that most of his own produce went to the pigs. He said there was water on the site. He remembered 2 pig keepers. The first was a coloured man who died mysteriously in the English Channel in 1981 and the other carried on for about a year.

19.12.9 He was cross examined. He said that he emailed the first draft of his statement before Christmas but didn’t sign it. He was away over Christmas and GKN’s Solicitor couldn’t contact him. In the event he corrected it at the earliest opportunity which was yesterday. He made the original statement in a bit of a rush and thought about dates and things before correcting it. The first draft concentrated on the things he had seen out of his window. He confirmed that he was unaware of the Application until he was contacted to make a statement.

19.12.10 The office building in which his office was located was built in 1991. He had a bird’s eye view of the field from his office and that was why he was asked to make a statement. He was contacted by GKN’s Solicitors in the middle of December 2003.

19.12.11 It was his habit to get to his office at 7.30 am to do desk work because he had meetings from about 9 o’clock. They usually lasted about an hour and were at the Test Facilities. He confirmed that GKN had an Environmental Department and that the Test Tank was in a fairly enclosed building.

19.12.12 He had a half hour lunch break between half past 12 and 1 o’clock and he used occasionally to walk across the footpath in the field.

19.12.13 A lot of GKN’s contracts were security conscious and the MOD insisted that they kept the external fences secure. He used to inspect them. Sometimes people broke in. He tended to work on his computer in the afternoons and the advent of emails reduced the requirement for meetings.

19.12.14 He used to look out of his window at about half past 7 in the morning. His impression was of a number of people letting their dogs run free in the field. From then until about lunch time he would see 4 or so people strolling along the footpath down the field and through the gap in the hedge at the far end. Then people started to get through the corner of the fence and it was broken. Nearly every one kept to the pathway because the Site was very overgrown and weedy. He looked at some photographs[163] which he said were of the corner of the Football Field. He agreed that the fence was not in a good condition. He remembered break ins in 2001 and items being stolen. Boys tended to break in to play football and this escalated after he left in 2000. Wooden pallets were sometimes used as stopovers to get into the field. He confirmed that the Training School ceased in 1993 or 1994. He was unaware who owned the field until he asked an employee called Ken of Site Services. [I think this must refer to Mr Lines.]

19.12.15 You could stand fairly close to Rig 29 although it was noisy and would make you wet. He thought you could stand within 12 feet of the main outlet and certainly on the field side of the dividing fence. However, Rig 28 was the dangerous one because the metal objects such as accelerometers would fly out into the field and could strike someone standing nearby.

19.12.16 He said the field was full of brambles and nearly every one kept to the footpath on the perimeter. If he saw people in the vicinity he would warn them. He was referred again to some photographs[164] and said that the oak tree depicted was cut back in the 1980’s because GKN didn’t want their equipment being damaged if it hit the trunk or a branch.

19.12.17 He was certain that pigs were still on the Site in 1982 because he remembered one of the American visitors giving his son a “ham and eggs” T shirt for his birthday in that year when the pigs were still there. His son helped him remember that date when he came to compile his statement. He was quite certain pigs were on the Site until 1982.

19.12.18 He did most of his walking between 1991 and 1996, after which he had severe back problems. He remembered the remnants of the pigsties still being there until 1994. He was referred to the Test Specification[165] and said that the machine concerned was a variable speed and the nozzle length could be changed. However the standard run was used for most tests.

19.12.19 Mr Rann cut the grass from 1997. He thought might have been a fire in the field when the pigsties were cleared out and the material remaining may have been burnt. However, he didn’t think it went on for as long as a week. He remembered explosive tests being carried out on competence during the 1990’s. He didn’t remember the field being reseeded although he remembered the grass being cut. Before 1991 the Offices were well away from the area of the field.

19.12.20 He thought that a third of all the Allotments were still in use in 1981. [On the basis there were 40 Allotments originally that would have meant 13 or so.] He thought that about 12 people in the Department still had their Allotments together with some people from East Cowes. He thought the scheme started in 1980 and he joined it in 1981. He said the Allotment was in a bad state when he took it over and he thought that no one else had cultivated it before him. Towards the end of the scheme people tended to jump from Allotment to Allotment to get the most fertile soil.

19.12.21 Much criticism was made by the Applicant of the form and presentation of Mr Michelmore’s evidence. In particular, it was suggested that he had modified his original statement to suit the requirements of GKN and to accommodate what the Applicant described as the “buddy effect”. I have carefully considered what the Applicant said about Mr Michelmore’s evidence in light of my recollection of him as a witness. In my view, the criticisms are misplaced. It is true that Mr Michelmore did make some important alternations to his draft statement before he signed it. It is equally true that he signed it at a late stage. However, his explanation for this was entirely convincing and I am satisfied that Mr Michelmore was an honest witness doing his best to recollect events from long ago most of which had no particular significance for him at the time. I accept Mr Michelmore’s evidence about his observation of walkers after he moved into his office in 1991.

19.12.22 I accept the factual content of his evidence concerning the operation of the Test Rigs, and in particular, that people would not have been deterred from walking in that part of the field by reason of the operation of Rig 29. I accept what he says about the Rig 28 and the potential danger from flying metal objects. I accept his evidence about the tarpaulins spread to collect them. I accept that there were pigs in the piggeries until 1982, although I would be hesitant about doing so on the strength of Mr Michelmore’s evidence alone in the absence of corroborating evidence. As it is, there is evidence from other sources which points to the truth of what Mr Michelmore said about this. I accept that he had an Allotment for approximately 1 year and gave it up at the end of 1981. I accept that there would have been 12 or so Allotments still in use although Mr Michelmore was not entirely consistent about this, at one time saying there were only 6. I accept that people tended to jump from Allotment to Allotment at the end. I think that Mr Michelmore is mistaken when he says that the scheme started in 1980 since there is clear evidence that it started in 1977.

19.12.23 When he said that no one else had the Allotment before him I think that probably meant that another Allotment Holder had given up his Allotment at an earlier stage and it had reverted to weeds. There is evidence of this from other sources. I accept Mr Michelmore’s evidence about the state of the field before it was cleared, although he did not remember the clearance itself. In particular, I think his comment that “people would have been cut to ribbons” if they left the footpath is an apt description of the state of the field prior to its clearance.

19.13 Mr Michael Christopher Marlow

19.13.1 He made a statement[166]. Mr Marlow operated the Test Rig when I conducted the Site visit on the first morning of the Enquiry.

19.13.2 Summarising Mr Marlow’s statement, he was employed at the Site from January 1968 until January 1970 and then from November 1976 until the present time firstly as a Test Engineer and then as Chief Test Engineer employed by GKN. He was familiar with the Site from 1977 onwards. He held an Allotment at the position marked ‘A’ on the plan[167]. At first the whole of the left hand side of the Site was given over to Allotments but from 1980 onwards their use declined gradually and those remaining were distributed evenly over the whole of that half of the said and existed as isolated units of cultivation. He remembered the piggeries being near the South West boundary of the site. From 1979 until 1988 he worked in a ground floor office marked ‘B’ on the plan[168]. From there he had view of the Western corner of the site. He was not aware of any one walking in the vicinity during this time.

19.13.3 He remembered a major clearance of redundant buildings and equipment in the Spring of 1988 which resulted in the materials being burnt at the point marked ‘C’ on the plan[169]. The burning operation lasted several weeks and it would not have been pleasant to go near the fire during that time. From 1991 onwards he worked in a first floor office in the new building at the point marked ‘D’ on the plan[170]. He was aware of the usage of the Site by members of the public exercising their dogs during this period. He thought the level of usage varied but was most prevalent between 1991 and 1993. As a rough estimate an average 3 or 4 people regularly used the Site at that time but he was not aware of anyone on the North West boundary more frequently than once per month. He remembered the Site being cleared in 1995 and grass cutting during following years. He thought that people using the Site confined themselves to the centre track and those around the boundary. The majority being along the South Eastern side with very infrequent use along the North West boundary.

19.13.4 In evidence he said that he was responsible for operation of the Flagellation Rig on occasions between 1976 and 1990. At the end of 2002 he became the Head of Department. He confirmed that the Rig he was speaking of was the Rig which I saw in operation on the first day of the Enquiry which had always been in the same position. There were various short term modifications carried out to it from time to time but for the vast majority of the time it was as it is now. The speed and velocity were constant. He had seen Dr Fryer’s notes and agreed with the general trend of them. Indeed, he said there was nothing in them with which he would disagree.

19.13.5 He was referred to the Test Report carried out on three samples of Skirt material for the American customers[171]. He confirmed that pages 25 to 27 referred to Test Rig 29. They were standard tests of Skirt material samples and these were checked at half hourly intervals. He confirmed that other Test Records had been disposed of during the course of time.

19.13.6 He was referred to the Applicant’s Bundle[172]. He confirmed the other witnesses’ evidence that greater use would have been made in earlier years. He was referred back to the GKN Bundle[173]. He said that the procurement was specific for the purchase of the Skirt material and the Table set out the Standard Tests, pp37 – 43 were the Departmental Operating Systems Procedures for Rig 29. He thought the requirements might have been relaxed as time went on but couldn’t have been certain.

19.13.7 He could not be entirely certain when he gave up his own Allotment. It would have been during October of the relevant year. The Allotment area was originally almost the entire area to the left of the centre track. He was referred to a plan in the Applicant’s Bundle[174]. Some of the remaining Allotments were within the area of the red rectangle and some were outside it. His own plot was in the corner of the red rectangle and adjacent to Mark SP3. He thought that Roger Ballard had a plot very close to his as did Tony Williams. Another Tony who was a Storeman had a plot just to the North East of the red rectangle but outside it. Mike Haile had a plot to the North East and outside of the red rectangle. Richard Diamond had a plot outside the red rectangle and to the South West. Between 10 and 20 other people had plots which he could not identify or place.

19.13.8 Prior to clearance of the Site he thought that the brambles were most heavily concentrated to the right hand side of the centre track and less densely concentrated over the old Allotment area. However, there were brambles over the whole field. He thought that at least 30% of the field was covered by brambles and other weeds.

19.13.9 He remembered the pig keeper still being there when he took up his Allotment. He remembers them from his original time with the Company in the 1960’s. His last recollection of the pig keeper was in 1981 when he was still tending his Allotment.

19.13.10 He was cross examined. He said that he was asked to provide the records of the operation of the Flagellation Rig within the Department and was at the same time asked to make a statement. He was asked by GKN’s Solicitors to demonstrate use of the Rig and this was done on the 5^th December 2003. Mr Scott asked him to provide details of the use of the Rig.

19.13.11 He couldn’t remember precisely when the Allotment scheme started but it was already in operation when he joined the Department and applied for one. He joined the Department in the Autumn of 1976 and they were all allocated Allotments at the same time with Holders starting cultivation in the Spring of 1977. It was the following Spring when an Allotment became available for him. He remembered the potato shortage following the dry Summer of 1976. He said it was possible that he could have begun his Allotment in 1978 but he continued to the Autumn of 1981. He was reasonable certain as to the beginning and end dates. He was certain that he had had at least 3 seasons crops from his Allotment. He grew potatoes in the first and second year and sweetcorn in the third. It is possible he finished with his Allotment in 1980.

19.13.12 As far as he could remember there were 3 or 4 people each day walking their dogs on the site. He remembered brambles being cleared in 1995 and he saw the special machinery clearing the Site in his own words “pretty impressively”. Then he remembered the land being ploughed and seeded. He remembered sheep grazing there. After the clearance the field was much less overgrown and was fairly flat and smooth as opposed to being overgrown with weeds and brambles. He didn’t think that the pattern of use of the field changed much after its clearance and it being reseeded. Much criticism was made by the Applicant of Mr Marlow’s evidence.

19.13.13 I have carefully considered the Applicant’s Submissions and those of GKN in relation to Mr Marlow’s evidence. I do not think Mr Marlow’s evidence is altogether reliable when he mentions the dates on which he took up and gave up his Allotment. GKN concede that that might have been 1980 or 1981. I accept his evidence about the operation of the Flagellation Rig and the burning of redundant timber buildings in the Spring of 1988. I also accept his evidence about his observation of walkers after he moved to the new building in 1991. His office was on the same floor as Mr Michelmore’s and his evidence is consistent with that of Mr Michelmore on this and other points. I accept Mr Marlow’s evidence about the character of the vegetation on the Site before and after it being cleared and in particular of the area of the Site covered with brambles. I also accept his evidence about the change in the character of the Site after it was cleared.

19.14 Mr Peter Harry Hernes

19.14.1 He made a statement[175].

19.14.2 e He ailobHSummarising his statement, he started to work for GKN in June 1976 as a Maintenance Electrician and progressed to Facilities Manager as from 1991. That role involved maintenance of all lands, buildings, plant and machinery at the Osborne Works site. It has been his responsibility since 1991 to ensure that the Site and its boundaries are kept in repair. He said that in all the time that he had known the Site the fencing has been substantially the same as it was when he made this statement in June 2003 ie. never in the best of condition but regularly maintained as the need arose. He said that since 1991 he has ensured that public access to the Site is kept “to a minimum” since GKN provides for public access to other land nearby including the Football Fields situated directly behind the site. GKN had erected floodlighting on the Football Pitches in order to encourage young people from East Cowes to use the Football Pitches rather than the Site which was always considered ideal expansion land for GKN’s Works.

19.14.3 Apparently from 1981 to 1991 Mr Lines dealt with fencing repairs and he used David Elsley of DB Contractors for fence repairs. When Mr Hernes took over responsibility for the Site he started to use Mr Janes. Mr Hernes said that he enclosed with his statement documentary evidence[176] showing Mr Janes’ consistent repairs to the Site boundaries. Those documents consisted of two invoices dated January and February 2003 respectively (both outside the period with which I am concerned). Mr Hernes was aware from Reports passed to him that people were regularly knocking fences over in order to gain access to the site. The most recent repair was in the Spring of this year when he noticed that the Whippingham Road gate had been forced open and was lying on the ground. His inspection showed that the gate had been lifted off its hinges and he employed Mr Janes to re-erect it. About a week later he noticed that the gate had again been forceably removed. This time it appeared that a vehicle had been driven into the fence post in order to dislodge the gate and the bottom hinge had been broken off.

19.14.4 The regular maintenance work was carried out either by Mr Janes or the Facilities Department and included repairing holes in the fence with barbed wire and clearing fallen trees. The Site was retained by GKN for expansion although left fallow in recent years because, said Mr Hernes, of concern over tenant rights. A number of redevelopment programmes for the whole Osborne Works Site were drawn up but never proceeded with. He attached a plan[177] dating from 1993 which makes it clear that at that time redevelopment was considered which would have included the Site with which I am concerned. Various interested parties have approached GKN over the years to purchase the Site but these advances have always been rejected. The last Review for redevelopment was in 1997 and at that time the access was improved by creating the new large Entrance and Reception Facility. This would have been the start of a planned scheme of enlargement whereby the Site would be developed along with the redevelopment of the existing Osborn Works Site. In the end the development did not proceed because of Highways concerns.

19.14.5 The creation of the new Entrance (now fenced off) provided an ideal stopping place for people with dogs in cars. Since 1997 Mr Hernes claims to have noticed a pronounced increase in the number of people trying to access the Site and in particular at the point marked ‘X1’ on the plan[178]. Once the fence was improved in that area people tended to access the Site at the point marked ‘X2’ on the same plan[179]. Mr Hernes said that he had seen unauthorised people on the Site on several occasions. He said that the route used by such people was across the Site through a hole in the lower hedge and thence to Whippingham Church and the Almshouses adjoining. This route was used in particular when the Public Footpath on the Farmer’s Field became slippery when wet.

19.14.6 In evidence he said that the letter to Mr Orlik at Barton Manor Farm[180] referred to the lower field and not the site. The reference to other arrangements was to Mr Rann. The Invoices at page 86 and 87 related to Mr Janes repairs to the fence work. The incident Report at page 88 related to the Incident when he found the gate lying on the ground on the 27^th January 2003. The photographs at 88A to H showed Mr Janes’ repairs using 2 x 25 metre rolls of wire mesh. The Incident Report at page 89 refers to the Incident the following week when the gate was again on the ground and the photographs following from 89A to 89B(iv) relate to that Incident.

19.14.7 The Incident Report at 89C related to the lower field. That was on the 4^th March 2003. The photographs at 89D-89O were taken on about June 17^th, 2003. The four additional photographs at 89B(i) – (iv) were taken at the Main Gates in about May or June of 2003. The photograph at 89G shows the metal gate at the Beatrice Avenue end and the woodwork blocking the entrance and the notice was to the right. [All these references are to the Blue Bundle]. [As already remarked, I noticed new screws in this woodwork on my accompanied Site visit].

19.14.8 He was cross examined. He said he was still employed by GKN. He was one of 10 to 12 Senior Managers. The General Manager was Tony Cushing. He was referred to the Applicant’s Bundle[181] and photographs 1, 2 and 3[182]. He agreed that they showed the South East corner of the field which was the entrance he had sought to close off. When asked to look at the Objector’s Bundle photographs[183] he thought they were taken at a different time of year and that some branches had been cut back there appeared to be a reasonable head height. One of his Engineers took the photograph. When referred back to the Applicant’s Bundle[184] he agreed that photograph 4 on page 16 depicted a path and perhaps a walking area. He didn’t agree that photograph 5 on page 17 depicted a path. He thought that photographs 7 and 8 might be animal tracks. Whippingham Church was in the background of photographs 11 and 12. Photograph 16[185] might depict a track or pathway it wasn’t clear and the same applied to photograph 20.

19.14.9 He had been the Facilities Manager since 1991 and the gate had progressively deteriorated from 1991 to the present day. He inspected the gate a couple of times a year. On many occasions he found it necessary to pull it shut. The gate had been put back on its hinges several times over the 10 year period.

19.14.10 When referred again to the Applicant’s Bundle[186] he confirmed that he had seen bottles on the ground in that position on many occasions. He imagined they were left by local people. Anyone passing the Site would have been seen had they entered at that point. There was security on the Site 24 hours per day and they patrolled the area.

19.14.11 When referred back to his own statement paragraph 7[187] he said the Purchase Order Requests were destroyed after 2 years and bits of the fence repairs were sometimes incorporated in other invoices.

19.14.12 When referred again to the Applicant’s Bundle[188] he said that the concrete post was new work and the bushes had been cut back. He looked at the photographs at page 195 and said the drainage was excellent on the Company land although the drainage depicted in the photographs was not good. He said that he took the photographs[189] there depicted. Major works of repair were undertaken to the Osborne Works Site fence in 1995. The footpath around Mr Orlik’s field was narrow and slippery in the Winter time. The Incident referred to at paragraph 9 of his statement[190] was the same incident as mentioned in the Incident Report[191] and photographs[192] those pages showed a field on the 10^th February 2003. With reference to the Whippingham Road gate being bent he said he hadn’t tried to swivel the hinge pins. Someone had come in a vehicle and pushed the gate until it came off its pins and ended up in the field. He thought a contractor undertaking repairs would park in the layby by the entrance to the Osborne Works Site.

19.14.13 The photograph of the gate lying on its side in the Applicant’s Bundle[193] he thought was taken on the 17^th June 2003. There was new signage on the gate that had been put there in March. He was referred to further photographs in the Objector’s Bundle[194]. The photograph at 89E showed the South East corner of the site. That at 89F showed the new screws put in to hold the board and notice in place in June. 89G and H showed the Beatrice Avenue gate. All the photographs at 89D-O were taken at the same time. 89M-N showed work carried out by Mr Janes. 89F shows the repair and 89K shows the wire cut after the repair which was done fairly shortly after the photograph was taken. In the Applicant’s Bundle[195] a similar scene is depicted.

19.14.14 The Applicant devoted a whole Section of his Final Written Submissions to criticism of Mr Hernes evidence and in particular the photographic evidence. GKN’s Counsel did not deal with it in her Closing Submissions but explained subsequently that since they largely related to post Application matters they felt no need to do so[196]. With reference to the first Incident Report dated 4^th February 2003[197] he submitted that none of the contemporaneous photographs[198] showed the gate off its hinges. It was clear that the photographs which were supposed to have been taken on the 4^th February 2003[199] could not have been taken at that time because the grass and vegetation surrounding the fallen gate were clearly that of the Summer season. In fact, Mr Hernes accepted in cross examination that those photographs were probably taken in May or June and I accept the Applicant’s submission that they were probably taken on the 17^th June 2003. If uncorrected, Mr Hernes evidence about this matter could have been misleading. As it was, he readily accepted the error in cross examination. The error was an unfortunate one and I think was caused by a breakdown in communication between Mr Hernes and Wragge & Co and I am grateful to the Applicant for pointing this matter out.

19.14.15 The Applicant also makes submissions about the second Incident Report of the 11^th February 2003[200]. The Applicant challenges the assertion by Mr Hernes that a vehicle had been driven into the fence post in order to dislodge the gate, thereby breaking off the bottom hinge. The Applicant makes the point that there is clear evidence that the hinge was bent or broken long before February 2003 and that it was probably broken before the Application was made in June 2002. Having considered what the Applicant says in the relevant section of his Submissions[201] I am prepared to accept that the damage to the hinge was not caused during this Incident but had been caused earlier. However, I accept Mr Hernes evidence that on two occasions within a short space of time at the beginning of 2003 the gate was found lying in the field.

19.14.16 The Applicant also asked me to consider whether the Incident Report of 4^th March 2003 was genuine[202]. He dealt with it in his Submissions[203]. In effect, the Applicant invites me to find that the Report of 4^th March 2003 was a false Report and neither Mr Hernes nor Mr Palmer saw any of the damage which they claim had been caused to the boundary fences on that date but that the other evidence including that from Mr Import[204] indicates clearly that the damage was done on the evening of the 17^th June. He said that no Invoice from Mr Janes or anyone else was included with the documents and the photographs[205] were clearly dated the 17^th June. I am not prepared to find that the Report of the 4^th March was a false Report. I am prepared to find that none of the photographs following the Report relate to that Incident. In all probability,

19.14.17 I think that there were two separate Incidents of damage to the boundary, one in March and the other on the evening of the 17^th June. The photographic evidence relates purely to the latter. I certainly do not attribute to Mr Hernes any intention to mislead the Enquiry or present false evidence. However, I must equally bear in mind that these matters all arose after the Application for Registration was made and are not strictly relevant to this Enquiry. They only relevance would be to show a consistency of maintenance or lack thereof both pre-dating and post dating the Application to Register. I have already expressed a view about this based on the evidence of Mr Janes and that view is confirmed by the evidence of Mr Hernes. That is to say, I am not satisfied that GKN in the period leading up to the Application to Register put in place and maintained a strict policy of maintaining and repairing boundary fences but preferred to do the necessary work piecemeal and at minimum cost.

19.14.18 Further, I am not persuaded by the Applicant that Mr Hernes has exercised some sinister influence over other witnesses in the Case and cause them to adapt their evidence to suit GKN’s case. Although he is a Senior Manager in the Company he was of equal standing to Mr Michael Marlow and Mr Scott (whose evidence I have yet to review). I could detect nothing about his demeanour as a witness which lead me to believe that he would have behaved in such a manner although I wholly accept that there were a number of errors relating to various photographs.

19.15 Mr Kenneth Gill

19.15.1 He made a statement[206].

19.15.2 Summarising his statement, he was the District Commissioner and Organiser of the Annual Camp for the Isle of Wight Pony Club from 1970 until 1993. In early 1976 he decided to ask GKN whether they could use the field behind the Site to turn out ponies during the Annual Summer Camp whereat children take their ponies to camp for two weeks in order to improve their riding skills. Up to 150 ponies would attend the camp in blocks of 50 over a two week period. Attached to his statement[207] is a plan showing the Pony Club Camp Field behind the site.

19.15.3 He approached Mr Line who was then Works Engineer and was given permission subject to providing suitable insurance cover. He produced the relevant correspondence dating back to that time[208]. Apparently Mr Line was concerned that the fences around the field being used should be kept in good state of repair including the fence between the Pony Field and the Site because trespassers were constantly knocking down the fences and ponies might get out into the site.

19.15.4 It was a condition of his licence to use the field that he kept the fence between the field and the Site in a stock proof condition. The ponies were turned out on the top half of the Pony Field and the Camp was held in the Pony Club’s own field across the other side of Beatrice Avenue. He said that walkers with dogs frequently twisted the strands of barbed wire that were inserted in the hedge to make holes so that they could get through with their dogs. The possibility of ponies getting out from the Pony Field was a real one and a headache for him. He would patrol the fence and check regularly to ensure that the fences were secure and would repair any damage.

19.15.5 His arrangement to use the Pony Field continued while he was District Commissioner until 1993 and he believes that the field is still used to this day. He said that in 1976 the grass in the Pony Field wasn’t of the best quality and they cut it in the following year. They used the Pony Field for schooling and grazing. They had previously purchased the Pony Club’s own field, some time known as George’s Field, in 1975. The fences were broken down very frequently. Mr Orlik had used the field to cut hay but nothing else. The hedges weren’t stockproof. He remembered the pigsties in the upper field and thought that 1 or 2 pigs stayed but were gone by 1979. He thought that GKN wanted the man who kept them out. He was offered the use of the upper field [both the sites) but decided it needed too much attention before he could turn ponies out in it. He said the field was very overgrown and the pigsties dilapidated. It was easier for the Club not to use the upper field. He thought the verbal offer of the pig field was made in 1978.

19.15.6 He didn’t think any commercial use was made of the hay cut by Mr Orlik. Mr Lines was aware of Mr Gill’s concerns about the fencing of the lower field, particularly in those days the hedge was thinner and it was easy to get through. He tried to rebuild and maintain the fence between the upper and lower fields between the two points marked on the plan[209]. He also did some instant repairs to the existing fence inside the pig field.

19.15.7 He was cross examined. He was sure that the pigs had gone by the late 1970’s. He thought there was one old pig at the end which made lots of noise and smell. He denied that he had erected some form of mobile fencing which was removed after the Pony Club had finished with the field, as suggested by Mrs Hewitt. Such would have been impracticable. He said that the condition of the upper field was such that it would have had to have been cut before the ponies could have been turned out in it. It wouldn’t have been any easy job to cut it because it was infested with brambles and weeds.

19.15.8 I thought Mr Gill was an impressive witness. His recollection of those days was clear and I accept his evidence that there were real difficulties about maintaining the stockproof condition of the dividing hedge. I also accept his evidence that the Pony Club did not use some form of mobile fencing which was removed after the Camp had finished. I also accept his evidence about the condition of the upper field at the relevant time and that he declined the offer of the use of the Site because of its condition. He said that he thought the last remaining pig had gone by 1979 but on that matter I think he is mistaken. The evidence of Mr Haile and Mr Michelmore is that the pigs remained there until the early 1980’s and on that I prefer their evidence. It may be that the explanation for this is that Mr Gill was only around the area of the pigsties for a short part of the year.

19.16 Mr Peter Scott

19.16.1 He made a statement[210].

19.16.2 Summarising his statement, he said that he was first employed by GKN in 1987 as the Company’s Safety Officer and took over responsibility for Security from 1988. That included the boundaries of the site. In 1988 the Site was much as it now. The conifers along Whippingham Road boundary were smaller and the security fence between the Site and the Osborne Works Site was in better condition. There were fewer gaps in the hedge between the Site and the lower field and the concrete post and chain link fence along Whippingham Road had recently been repaired. Security on the Site was now tight. It was patrolled every 4 hours to make sure that the gate was locked and any breaking of fences is reported.

19.16.3 The Security Office marked on the plan[211] is on the First Floor and gives a good vantage over the whole site. Security Staff monitor the Site and are instructed to ask trespassers to leave. This cannot always be done during working hours as the guards may not leave the Osborne Works Site. He recalled that in 1988 there was an annual Insurance Inspection during which it was noted that the site, where it joins the boundary with the Osborne Works Site, had become seriously overgrown and GKN were required by their Insurers to cut back the undergrowth 20 feet from the boundary fence. Mr Scott employed a contractor to plough a 25 foot wide fire break. The Insurers changed and in the mid 1990’s the same action was required. It was as a result of that that Mr Rann turned over the whole field and reseeded it. He has cut the hay each year to ensure that the Site does not become seriously overgrown and a fire risk.

19.16.4 He remembered the road being widened and the new entrance created in 1997. Prior to that he had noticed very few people walking on the Company side of the hedge separating the Site from the public footpath running along the Southern boundary. He remembered the footpath being boggy in the Winter time and people preferred to walk in the Company’s side of the hedge which provided a better surface. After the new entrance was created a few more people parked their cars in the layby and walked their dogs on the site. It was because the new entrance was not used and the layby was vacant. The temporary fence separating the new entrance from the Site quickly became broken down as people started to use the new entrance as a layby.

19.16.5 Numerous repairs were carried and about 3 years ago he arranged for the fence to be repaired more thoroughly with concrete posts and chain link fencing. Since then very few people have attempted to enter the Site at that point. Now, if he sees dog walkers on the Site he alerts Security to take appropriate steps. The fences were quite frequently broken and he arranged repairs either by his Security Staff or other Company employees.

19.16.6 He recalled the burning off of pyrotechnic flares in 1990 when the Royal Naval Bomb Disposal Unit thought the situation was fairly serious and required a large hole to be dug at the back of the Allotment Field and immediately in from of the old pigsties for the purpose of burning of the flares. There was a spectacular explosion when they were burnt. He had asked the Security Staff to maintain the fences and repair them where necessary prior to this operation taking place. He remembered the operation of the Flagellation Rig and showed the area of disturbance on the plan[212]. He thought the testing continued until 1987 but declined after that. He thought that any one on the Site would have kept clear of the area of the spray.

19.16.7 In evidence he said the increasing gaps in the hedge was in the hedge between the Site and the Pony Field. There had been at least one fire in the hedge which burnt a hole about 30 yards along from the corner. They still had problems with one individual who walked his dog on the site. He was photographed doing so on the 26^th November and Mr Scott spoke to him a week before Christmas.

19.16.8 The fence was a continual problem until it was repaired properly. It is now in reasonable order. He knew who the dog walkers were and named Mrs Lambert Allen as someone who had walked her dog since 1988. He didn’t recognise any other person whom he saw at the Enquiry as having been a dog walker on the field. He said that the arc of the spray from the Flagellation Rig was more accurately depicted at 53A than at 53. He measured the hole in the South East corner of the hedge at lunch time on the second day of the Enquiry and from the top of the hump to the nearest branch was 5 feet 2 inches. He said that you could push the Whippingham Road gate open and he remembered it being damaged in the mid 1990’s. The bottom hinge bush became loose and you couldn’t open it so easily. A year later the bottom bar broke and the hinge swung free in a 180º position where it has become fixed and corroded.

19.16.9 He was cross examined. He said he never asked Mrs Lambert Allen to leave the field. He had discussions in 1988 with the Personnel Manager and the Managing Director whose feeling was that dog walker were not doing the Company any harm as they were largely retired people and could be relied on to report any damage to the field. Accordingly, he was instructed to ignore them. He said he didn’t think that the 2 Directors had thought about this matter before them. The fence was repaired several times by different people including himself. It was seen as something outside the operational area of Osborne Works and therefore not a core need for finance. People he said would come in cars and have no hesitation in breaking the fence down, in spite of his requests to the contrary. He would talk to anyone whom he thought was doing harm.

19.16.10 The arc at 53A extended to about 30 metres which was about 3/8ths of the distance from the boundary to the central path. He thought his security measures were successful except with reference to the hedge between the upper and the lower field. The gate to Beatrice Avenue was kept locked. The Football Club were issued with a key but they were frequently lost. In any event, GKN discouraged people from going into the Football Field by the Beatrice Avenue entrance. He said that the undergrowth around the boundary fences was cut back together with tree branches both in 1988 and 1995 when the Site was cleared. The trees between the pigsties and the Osborne Works boundary had been planted in 1907 in the reign of King Edward VII and when the Site was the Midshipman’s Isolation Hospital.

19.16.11 The Flagellation Rigs were used more in 1987 and 1988 than in 1989 and 1990. Straw bales were put up when the Rigs were run at night to deaden the noise. He maintained that the only person he had seen at the Enquiry who he had previously seen walking the field was Mrs Lambert Allen. He said that funding for maintaining the hedges and fences had become progressively tighter since 1987 and whereas if he pointed out a problem then it would get done it became more difficult as time went on. He never felt the need to go over the heads of Mr Lines or Mr Hernes and speak to the Managing Director about the state of the fences. He had been trained by the Ministry of Defence in Security matters and considered himself as experienced.

19.16.12 He said that very few people were walking their dogs across the Site when he had the discussions with the 2 Directors in 1989. The vast majority of dog walkers left by the corner gate using the field as a route into the bottom field and thence into Beatrice Avenue. He did not have any specific concerns at the time he had his discussion with the 2 Directors.

19.16.13 Mr Scott’s evidence concerning the difficulty of funding repairs to the fences and hedges was consistent with my impression that little was done over the years to maintain the same and that after the mid 1980’s for budgetary reasons the repairs became still fewer and further between. I accept Mr Scott’s evidence that he had a discussion with the 2 Directors in 1989 and that as a result a decision was taken not to prevent people walking their dogs across the field.

19.16.14 I accept Mr Scott’s evidence as to the reason for the cutting of the grass in 1988 and the clearance of the Site in 1995. I accept that Mr Scott did not recognise anyone at the Enquiry except Mrs Lambert Allen as a dog walker but I think that was probably because she was the only person he knew by name. I do not accept that none of the other people at the Enquiry giving evidence for the Applicant were dog walkers.

20.0 THE OBJECTOR’S WRITTEN EVIDENCE

20.1 As I have indicated, 3 statements were tendered in evidence[213]. I have already remarked that it is unfortunate that 3 potentially important witnesses were not called. Since none of their statements were subject to cross examination and I was not able to form any impression of any of the 3 persons as witnesses, I shall treat their written statements cautiously. Nevertheless, at least part of each statement is not contentious and where it is not contentious I shall give the statement the same weight as I would if it were oral evidence.

20.2 The first person who made such a statement[214] is:

20.2.1 Paul James Brownrigg

20.2.1.1 Summarising his statement, he is a Farmer who has lived on the Isle of Wight since 1979. He first noticed the existence of the Site when visiting a friend in December 1998 and took the Site to graze sheep after speaking to Mr Rann. His tenure of the Site lasted for 3 weeks during January 1999 for which he paid £60. He kept approximately 200 ewes on the Site and visited it daily in order to check on them. The whole of the Site was fenced during the period of his tenure. There were hedges around most of it and a Security Fence along the side that bordered the Osborne Works. He reinforced the existing fencing with electric sheep fencing because sheep are notorious for escaping through natural hedges. In order to graze the field most efficiently he split it in two, once to the left hand side of the central track and when that was exhausted to the other side. He said that throughout his tenure it was obvious to him that the Site was private land and he did not use the field after the 1999 Season because Mr Rann who organised the grazing left GKN and he did not pursue the arrangement with Mr Hernes in subsequent years.

20.2.1.2 When he took the land for grazing he did not see anyone enter the Site nor did he see any evidence of dog walking. During the 3 weeks that he used the Site he could not remember ever seeing anyone walking their dog although he used to visit the sheep daily. He didn’t remember the central track being used as a footpath because it led to a dead end at the far end as far as he was concerned.

20.2.1.3 I have no evidence as to the time or times that Mr Brownrigg visited the Site when the sheep were there and while I am prepared to accept that he may not have noticed anyone I am not prepared to find that no one used the Site when the sheep were there. There is other evidence coming from witnesses who gave evidence to the contrary and I prefer it. Equally, it is clear from the Tables[215] that the Flagellation Rig was used on several occasions in late January 1999 and I have no evidence from Mr Brownrigg whether he knew this or whether the sheep were in the left or right hand section of the field when the Rig was operated. I would assume they were in the right hand section at the end of January if the whole of his tenure was during January.

20.3 The next such person is:

20.3.1 David Reginald Peter Elsley

20.3.1.1 Summarising his statement[216]. He said he has known the Site for 40 years and he was a General Maintenance and Building Contractor for GKN. He worked for DB Builders until 1997 when he retired. His memory stretched back to 1958, when he was 15, and it was rented out to a Mr Gordon who kept pigs. There was the central track running down the middle but the pigsties were at the far end and just to the right of the footpath[217]. Mr Elsley took over the business which became DB Builders in 1976 and worked on the Site for GKN or its predecessor as was necessary. He carried out any general maintenance between 1976 and 1997. He did any fence repairs, tree cutting, cleaning up and general building and handiwork. He remembered the Allotments to the left of the track when he started in 1976.

20.3.1.2 He thought the only entrance to the Site at that time was the Whippingham Road gate. The Allotments were dug up and there was a water supply. His firm dug the trench. He also remembered the Flagellation Rigs in operation on the other side of the site. When the Rig was operational water and spray would be sprayed into the field and he said the Site was rendered virtually useless for any other purpose because the spray and the mist carried over well into the right hand side of the Site making it virtually impossible for anyone to walk along that part of the site. In fact, he said it would have been very unpleasant to be near it. He said he saw very few dog walkers or other people on the Site when he was working there and those that there were would have entered the Site from the Whippingham Road gate.

20.3.1.3 More recently, and since his retirement, he noticed that there were more walkers on the Site who seemed to be entering via the stile in the South East corner. He had recently walked down the footpath and noticed that people had broken through the hedge. This happened after he left the employment of GKN and it wouldn’t have happened in his time because he was responsible for maintaining the Site and would have got someone to repair it. He thought GKN always actively fenced the Site and kept it in good repair. He remembered that people could get to the Site from Football Pitches at the bottom of the field.

20.3.1.4 I accept Mr Elsley’s evidence about the pigsties being on the Site when he first worked there. Not having heard from Mr Elsley I am not prepared to make any Findings as to the quantity of repair work he did in the period from 1976. I note that Mr Hernes said that when he took over from John Lines in 1991 he started to use Ian Janes as a Contractor in preference to Mr Elsley. I therefore doubt whether Mr Elsley did much repair work after that time. I am unable to accept Mr Elsley’s evidence that no one could use the right hand part of the field when the Flagellation Rig was in operation. There is oral evidence which I prefer to the contrary. Not having seen or heard oral evidence from Mr Elsley I am not prepared to Find that there were few people on the Site during the years he worked there.

20.4 The next and last such witness is:

20.4.1 Mr Kenneth John Line

20.4.1.1 Summarising his statement[218], he worked for GKN or its predecessor between 1946 and his retirement in 1991. He said that he remembered pigs being grazed on the Site when he first started. The Company owned thee N pigs and the meat was used in the Staff Canteen. Swill from the Canteen was fed to the pigs. The Company employed a man to look after them. The Site was much as it is now save that the pigsties were at the Western boundary at the point marked[219]. By 1970 he was responsible for all the GKN sites on the Isle of Wight and in the South of England. He was the Works Engineer.

20.4.1.2 GKN purchased the Site in the late 1940’s from The Crown Estates and sublet it to a Farmer. Mr Line was concerned that an Agricultural Tenancy of the land might be created which might frustrate GKN’s intention to hold the land in reserve for potential future expansion and as a buffer area for testing. Apparently the Lease contained a proviso for determination in the event that rent was not paid, the Farmer failed to pay the rent and the Lease was terminated. It was then consciously decided to allow the land to remain fallow and prevent any Agricultural Tenancy arising.

20.4.1.3 He said that he ensured that the Site was adequately fenced with a robust gate and there was a well established hedge on the left hand Site when viewed from Whippingham Road which formed the boundary with the public footpath. He walked the Site at intervals. He recalled that the fences to the Eastern side abutting Whippingham Road and the fence on the Western side were strengthened where they adjoined the Farmer’s Fields. He also recollected that the pigsties were demolished when the Site was recovered from the Farmer. The Site became overgrown with brambles and weeds and GKN used a small corner to the right of track for the storage of Jig tools. That is marked on the plan[220]. Two different Contractors were used to maintain the fences. Firstly R & S Bartlett of East Cowes who became DB Builders owned by Mr Elsley.

20.4.1.4 The second were Max’s Garden Services who planted trees along the Whippingham Road boundary to provide a visual buffer during the late 1970’s or early 1980’s. As a result of road widening a new entrance to the Works Site was created at the position shown on the plan[221]. A new gate was erected and kept locked. Between 1980 and 1991 the only way to enter the Site would have been by force if one didn’t have a key to get through the main gate. This was a calculated decision by GKN as the Company wanted to be sure that no one got any rights over the site. Legal advice was sought and no one was seen trespassing on the Site between 1980 and 1991. Mr Lines sanctioned use of the left hand side of the Site for Allotments in about 1977. He was against the idea at the time as he was concerned about Tenancy Rights but was assured by GKN’s Legal Department that there would be no difficulty. He thought the Allotments lasted 2 or 3 years but were then discontinued because of the poor state of the soil.

20.4.1.5 He remembered the track from the main gate to the Western boundary but no other tracks on the site. He knew from time to time the fences were cut and people were gaining access to the Site from the Security Reports made to him. He arranged for a patrol to walk the boundaries of the Site at the weekends and report holes in the fences. This became a regular weekly check. Contractors were instructed to repair any damage to the fences and this became a Standing Order. He also remembered the operation of the Flagellation Rigs and thought that no one would walk within 50 feet or so of them when they were operating. He also remembered complaints about noise from the Whippingham Heights Estate. He remembered the second Rig to the rear of the Jet Engine Building and that Rig was fired into the Jet Engine detune to reduce the noise. He said both Rigs ran continuously 24 hours per day until he left the Company.

20.4.1.6 Not having heard from Mr Line I cannot on the basis of his statement make a Finding that there was strict enforcement of Security until he retired in 1991. However, I note and have remarked on the evidence from Mr Scott and Mr Hernes that after the late 1980’s budgetary constraints caused the level of perimeter Security at the Site to be more difficult to maintain. To this extent I am prepared to accept Mr Line’s untested statement about the fences.

21.0 MY FINDINGS OF FACT

21.1 Having considered all the evidence placed before the Enquiry, including the written evidence and the Parties’ Submissions thereon I make the following Findings of Fact.

The Site

21.2 Although I am not concerned with any time before the period began, I Find that historically the Site was given over to the keeping of pigs from at least the 1950’s onwards. Gradually, the area occupied by the pigs and their sties shrunk. Various attempts were made to cultivate the Site but were unsuccessful because of the poor quality of the soil. In late 1976 or early 1977 the left hand side of the Site when viewed from the central path was ploughed up and given over to Allotments. There have been various estimates of the total number of Allotments but each Allotment measured 22 metres by 7 metres. I Find that there may have been as many as 50 Allotments originally which ran transverse to the central track and which were connected to it by paths and divided from one another by similar paths.

21.3 It is not possible at this remove in time to determine precisely how much of the left hand side of the Site was ploughed up but a substantial part, if not the whole, must have been ploughed up to accommodate the Allotments concerned. Water was laid on to service the Allotments and access to them was via the Whippingham Road gate. The Allotment Holders were all employees of GKN.

21.4 The other half of the Site remained uncultivated. It was covered with weeds, brambles and other vegetation.

21.5 Because of the poor quality soil the Allotment Holders gradually gave up their plots. It is not possible to determine precisely the number of plots still under cultivation in June 1981 ie. the start of the period, who the Allotment Holders then were and where their plots were located. The evidence suggests that the plots nearest to Whippingham Road of poorest quality and given up soonest. It also suggests that the remaining Plot Holders tended to migrate to more fertile plots as these were given up. However, the remaining plots were scattered around the left hand part of the Site and were not grouped together, although some may have been adjoining.

21.6 I must consider the evidence and see whether I can make any further Findings as to the remaining Allotments. For the reason I have given, I do not think Mr Hames evidence is a sound basis for making any Findings on this point. For the reasons I have already given I cannot rely upon Mr Cox’s evidence as to the date on which any particularly Allotment Holder gave up his or her plot. Mr Allcock said that the Allotments were not cultivated after May 1981 but I cannot accept his evidence on this point for the reasons I have given. I have analysed Mrs Adams’ evidence and concluded that her Father continued until the early 1998’s but nor more than that. Mr Darlestan-Jones thought the Allotments continued until at least 1982, and I have accepted his evidence. However that does not mean that they cease in 1982.

21.7 I am unable to treat Mrs Hewitt’s evidence as being reliable on this and other matters. None of the Interested Persons who gave evidence helped on this point, nor did the Applicant’s Written Evidence. I am unwilling to draw any of the conclusions which the Applicant invites me to from the aerial photographs.

21.8 Turning to the Objector’s evidence Mr Haile said that he gave up his Allotment in the Autumn of 1983 and I have indicated that I find this evidence reliable. I also accept that at that time there were between 4 and 6 people who still held Allotments at the piggeries end of the field. Mr Michelmore gave up his Allotment at the end of 1981 at which time there were approximately 12 or so Allotments still in use. That is consistent with a gradually diminishing total leaving approximately 4 to 6 when Mr Haile gave up in the Autumn of 1983. I have already indicated that I do not rely on Mr Michael Marlow’s evidence when he mentions the dates on which he took up and gave up his Allotment. In consequence, I can derive no assistance from his evidence as to the date when Allotments were finally given up. I derive no assistance on this point from the Objector’s Written Evidence.

21.9 Taking the Evidence as a whole, my Findings are that there were approximately 4 to 6 Allotments left when Mr Haile gave up his in the Autumn of 1983 and these were scattered over the left hand part of the Site, and were probably at the piggeries end. On the Evidence, I Find that these remaining Allotments were given up over the next year, with possibly one remaining until the following year ie. 1985. It is not possible to identify the last remaining Allotment Holders. I also Find that the strong likelihood is that Allotment Holders would have given up their Sites in the Autumn ie. at the end of the growing season.

21.10 So far as the piggeries are concerned I can deal with the matter more briefly. The witnesses for the Applicant were not specific about dates. Of the Objector’s witnesses, Mr Michael Marlow last remembered pigs being present in 1980 or 1981. However, he was vague about the date on which he gave up his Allotment and since it appeared to me that he was tying the date when he last saw the pigs to the date when he last worked his Allotment, I do not treat his evidence as being a sound basis for making any Findings. However, both Mr Haile and Mr Michelmore remembered pigs still being on the Site in 1982. Mr Michelmore remembered the T shirt and the “ham and eggs” joke. His Son helped him with his statement and he was quite certain that the pigs were on the Site until 1982. That is a sound basis for making such a Finding, which I do, but I am helped further by the evidence of Mr Haile who said that a friend of his looked after the pigs until he left GKN in 1982 after which the pigs stayed for a further six months. I cannot accept Mr Gill’s evidence as to the date on which the last pig remained but I do accept his evidence that at the end there was one pig. Taking the evidence as a whole, I Find that there was at least one pig in the piggeries until the early part of 1983.

21.11 After the pigs had gone altogether, I Find that the pigsties, which were made of concrete, brick and corrugated iron became more dilapidated by the year and probably collapsed after one of the storms in the late 1980’s or early 1990’s. I accept that the area around the piggeries would have become very overgrown once the pigs left. I think that that would have been a particularly inaccessible part of the Site after that time. Mr Michelmore remembers the remnants of the pigsties still being in place until 1994. By that I think he means that the concrete bases were still in place surrounded by the rubble of brickwork. Mr Lines Written Evidence was that the pigsties were demolished when the Site was recovered from the Farmer.

21.12 Not having tested by cross examination I am not prepared to accept that there were no pigsties still present after the pigs had gone or that they were deliberately demolished. I do not think that any part of the Site occupied by the pigsties was accessible and available for use until at least 1994 and probably not thereafter because of the overgrown nature of that part of the Site and the rubble etc still insitu. I should add that I am not helped at all by any formal evidence of an Agricultural or other Tenancy because, as is perhaps not surprising, after this length of time no records remain in existence.

22.0 ACTIVITIES ON THE SITE CARRIED ON BY GKN OR WITH THE CONSENT OF GKN

22.1 The Flagellation Rigs

22.1.1 I am not persuaded that the operation of Rig 29 or Rig 41 would have deterred anyone from using any pat of the Site when in operation. I base this Finding partly on the Oral Evidence, partly on the Written Evidence and Tables and partly on my own observation. I accept the Evidence set out in the Tables produced by the Objector as to the dates on which the Rig was operated and the hours in which it was operated on those dates. I accept that many walkers would have kept clear of the spray of choice but equally, I accept that neither the spray nor the airflow would have made any part of the Site inaccessible (rather than uncomfortable) for any person present within its range.

22.1.2 During my Site visit I observed the damaged shrubs within the arc of the spray and a seat inside the Osborne Works Site which was also within the arc of the spray from Rig 29. I accept Dr Fryer’s Evidence, which confirmed my own observation that at 15 metres from the boundary the airflow was equivalent to no more than a fresh breeze. I also note that there is Evidence that the sheep belonging to Mr Brownrigg were grazed in the right hand half of the field in late January 1999, when there were a number of tests going on with Rig 29.

22.1.3 Rig 41 did not project water or air directly onto the Site and I have no reason to believe that any one was deterred from using the Site by reason of its operation. In any event, Rig 41 finished in about 1986.

22.1.4 Different considerations however apply so far as Rig 28 is concerned. It will be remembered that that was the hinge testing Rig from which metal objects such as accelerometers were frequently projected into the field and recovered via the tarpaulins. There is no Evidence that anyone was ever struck by such an object but I accept Mr Michelmore’s Evidence that Rig 28 was more dangerous than the other 2 Rigs on account of the flying metal. I also accept his Evidence that he would warn anyone in the field if Rig 28 was in operation. Interestingly, there is no Evidence from any of the people who claim to have used the field that they were ever so warned and that may be an indication that relatively few people used the Site at that time. Rig 28 ceased operating in 1987 or 1988. I also accept that tree branches were cut back at some time in the 1980’s because GKN didn’t want their equipment to be damaged. There is no Evidence in the form of a Table or otherwise as to the precise dates or frequency with which Rig 28 was in operation between the start of the period ie. from June 1981 until 1987 or 1988 when Rig 28 ceased.

22.1.5 However, I accept the Evidence of Michelmore that there was significantly more use of the Rigs in the early 1980’s than later at least in part because of the American contract and that during 1981 and 1982 there would have been a significant amount of testing using Rig 28.

23.0 THE IMPROVEMENTS TO THE SITE AND THE TAKING OF HAY CROPS

23.1 I Find that the right hand side of the Site was never cultivated for Allotments or otherwise until 1988 when as a result of a requirement by GKN’s then Insurers a 25 foot wide strip was cut along the Northern boundary of Site ie. the boundary adjoining Osborne Works. I Find that this was done so as to create a fire break. I also Find that in 1995, after the Insurers had changed, it was decided to turn over the entire field and reseed it with rye grass. I Find that this was also done to reduce the risk of fire. I Find that prior to 1998 both halves of the Site were overgrown with brambles, weeds and other vegetation and that the right hand side was probably more overgrown than the left, firstly because it had not been given over to Allotments and secondly because of the piggeries at the far end. I also Find that apart from the central path and the perimeter paths most of the rest of the Site was so overgrown that it was inaccessible to walkers and for the purposes of any other likely recreational activity.

23.2 I Find that there may have been the odd informal footpath created by walkers from time to time (such as the one from the South East corner to the hedge with the Lower Field) but that these only covered a small proportion of the Site as a whole. I Find that there may have been some isolated recreational activity at times and there would have been the picking of blackberries, sloes and mushrooms during the appropriate Season but that such activity was again confined in large measure to the perimeter. I Find that people may have let their dogs into the rest of the Site when walking them but that the people did not as a rule follow the dogs. There may have been some exceptions but these were few in number.

23.3 The ploughing of the fire break in 1988 did not alter the character of the rest of the Site. Equally, there is no evidence that that part of the Site which was cleared was reseeded at that time. It must be remembered that when Rig 28 was in operation the metal projectiles would have landed in that part of the Site which was cleared in 1988, by which time Rig 28 had effectively ceased. Accordingly, the picture painted by Mr Michelmore of spreading a tarpaulin in order to collect objects that otherwise would have been lost in the undergrowth is I think an accurate one.

23.4 As I have mentioned elsewhere in this Report, more than once, the entire Site was cleared and reseeded on the instructions of Mr Rann in 1995. I Find that the character of the Site has altered radically since then and that most parts of the Site are now accessible to walkers and have been since then.

23.5 I Find that the purpose of the turning over and reseeding was (a) to reduce the risk of fire and (b) to keep the Site in reasonable condition against the possibility of future development. Further, I Find that the taking of the hay crop was a secondary purpose to the main purposes and that it made economic sense to have a crop from the field both to Mr Rann and GKN. However, I also Find that the taking of that crop was not for the purpose of maintaining or improving an emerging Right to use the Site by local inhabitants nor was it done in recognition that such a Right existed.

23.6 I also Find that hay crops were taken each year from 1995 to 2002 inclusive; that such crops were taken as the result of an Agreement between Mr Rann and GKN Management; that each year the process took between 1 week and 3 weeks, depending on the state of the weather at the time; that such cropping of the hay necessitated the use of a tractor, baler and mower; that the resultant hay crop, having been baled, was then of moderate quality but good enough in large measure to be used as fodder; that some of it was sold and some used by Mr Rann for horse fodder; that in one year, namely 2002, the bales were ruined by rain and could not be used but were left to rot in the field; that although there was some dog excrement in the field, there was insufficient to render the hay crop unusable in any year and that there is no evidence that the crop was ever abandoned on that account.

23.7 In coming to these Findings I take fully into account the evidence of some of the Applicant’s witnesses casting doubt on the quality of the hay crop and the uses to which it could be put, but, as I have Found, I think the crop was of just sufficient quality for it to be used as fodder.

24.0 SCRAP TIMBER BURNING ETC

24.1 I Find that in the Spring of 1988, various redundant buildings were dismantled and burnt over a number of weeks in the middle of the Site and at the point marked by Mr Michael Marlow on the plan[222]. I Find that during that burning the smoke, fumes and flames would have made it difficult for anyone to approach and those who remembered it eg. Mrs Lambert-Allen kept away while this was going on.

24.2 Equally, in 1990 a number of old weeping flares were disposed of by means of a controlled explosion. This was carried out by the Royal Naval Bomb Disposal Unit which detonated the flares thereby causing quite a spectacular explosion. People were kept away from the Site while this was going on.

25.0 THE SHEEP

25.1 I Find that in the Spring of 1999 Mr Brownrigg was given permission to graze approximately 200 ewes on the Site. I Find that they were grazed during January and on each side of the Site in succession. Firstly on the left. Then on the right. In each case, an electric fence was erected to prevent the sheep getting out and that it was successful in this respect.

25.2 However, I do not think that the field was made inaccessible as a whole during such grazing. On the contrary, I Find there was a sufficient gap between the fencing and the perimeter hedge that people walking their dogs could do so and in some instances did so while the sheep were there. I Find that the electric fencing extended to a short distance from the central track, but not so as to prevent people from using it while it was in place on either side of the Site. I Find that there probably was some rubber insulation on the fence at some point but that was probably put there to permit Mr Brownrigg, an employee of GKN or a sheep dog to enter the fenced of portion at that side. I do not think it was put there for the convenience of walkers.

25.3 In relation to all these activities I make the following Findings:

25.3.1 Firstly, they were carried on by GKN or on GKN’s behalf without reference to any other person and in particular without seeking the consent of any other person. Secondly that no objection was raised about any Site user or any other person when these activities were undertaken, all of which to some extent and some to a large extent, interfered with the use and enjoyment of the Site. Thirdly, when such activities were undertaken by or on behalf of GKN, people who might otherwise have used the Site either kept away altogether or alternatively avoided using the part of the Site thereby affected.

26.0 THE USERS OF THE SITE DURING THE WHOLE OF THE 20 YEAR PERIOD CLAIMED

The Numbers and Residences of such Users

26.1 The Applicant called 11 witnesses (including himself) who were or claimed to have been users of the Site. Of these, 8 are residences of the Whippingham Heights Estates as follows:

§ Mr George Marlow – 9 years

§ Mrs Lambert-Allen – Since 1983 and with Mr Allen since 1991

§ Mr Cox – 7 years

§ MrAllcock – Since February 1981

§ Mr Import – Since December 1993

§ Mrs Targett – 16 years

§ Mrs Adams – Since 1993

§ Mr Darlaston-Jones – Since 1997

26.2 The remaining 3 ie. the Applicant himself and Mr and Mrs Hewitt live elsewhere in Whippingham.

26.3 I have already analysed the statements made by Interested Persons at the Conclusion of the Enquiry[223]. Of those the following are residents of Whippingham Heights:

§ Mr Busby – since 1988

§ Mr Allen – since 1991 (with Mrs Lambert-Allen)

§ Mr Norrise – since 1997

§ Mr Le Goff – since 1992

§ Mrs Hapgood – since 2000

§ Mr Legge – since 1989

26.4 Three more people namely: Mrs Luckett, Mrs Collins and Mrs Merry, who all claim to be users, live elsewhere in Whippingham.

26.5 I have analysed the breakdown and whereabouts of the 34 witnesses not called elsewhere in this Report[224]. An analysis of the witnesses called shows that for the first year or so of the period only one “user” witness came from Whippingham Heights, namely Mr Allcock. Mrs Lambert-Allen moved to Whippingham Heights in 1983 and until 1988 she and Mr Allcock were the only witnesses called who lived within Whippingham Heights. During this period other witness users were Mr and Mrs Hewitt and the Applicant himself, of whom Mr and Mrs Hewitt lived elsewhere in Whippingham and Mr Taylor then at East Cowes. After 1988 the numbers gradually increased until all 8 user witnesses gave evidence of use from approximately 2000 or 2002.

26.6 I have no precise evidence as to the number of inhabitants of either Whippingham or Whippingham Heights Estate during the 20 year period. I can make some Judgement however as to whether the number of users from the Whippingham Heights Estate and/or Whippingham respectively were a “significant” proportion of the whole throughout the period and will do so at the appropriate point.

27.0 THE FREQUENCY OF USER AND THE ACTIVITIES CARRIED ON

27.1 Some witnesses claim to have used the Site almost daily, others up to 5 times per week and others less frequently. I have analysed the Evidence of each witness individually who claimed frequent use. It is not susceptible to further analyse and Findings at this point other than I Find as a fact that wherever they came from, the majority of frequent users of the Site were walkers with dogs.

27.2 So far as other activities are concerned I find that a number of users picked blackberries and other wild fruits from the hedges and mushrooms from the ground in season but that would be over a comparatively short part of the year. Such activities were sometimes carried out by walkers with dogs and sometimes by unaccompanied walkers. I find there is some evidence of other activities but that it is rather limited. Such evidence as there is of other activities consists of local residents playing with their children or grandchildren as the case may be on relatively isolated occasions. I Find as a fact that because of the nature of the terrain and ground cover such activity did not occur other than on an extremely isolated basis prior to 1995.

28.0 THE AREA OF THE FIELD USED

28.1 I Find that prior to 1995 use was largely confined to the central path, the perimeter paths and the occasional use of informal paths but that taken together these paths only covered a small portion of the whole Site.

28.2 I Find that those users of the Site who lived within the Whippingham Heights Estates or Whippingham Village by and large arrived at the Site on foot. Those from East Cowes and elsewhere tended to arrive by car. This applied whether or not they were with dogs or not. I Find that after the new entrance was created there was a natural layby which may people who came by car tended to use and who would gain access to the Site at that point.

28.3 I Find that users of the field would use the Whippingham gate if open or the gap in the hedge by the South East corner. They would also use the unauthorised access created in the vicinity of the layby and referred to by more than one of the Objector’s Witnesses.

28.4 I also Find that the pattern of user thus described is consistent with the observation of Mr Michelmore and Mr Mike Marlow, whose offices overlooked the Site from 1991, and whose evidence I Find to be credible.

28.5 Of the users of the Site, a substantial number came from elsewhere than Whippingham Heights of Whippingham Village. I have considered the respective Submissions of the Parties and Conclude (in the light of the Supplementary Submissions from the Objector’s Counsel) that taken at its best approximately 40% of the total users came from East Cowes, ie. outside Whippingham Heights or Whippingham Village. The actual figures are 58 overall users, of whom 23 are from East Cowes and 26 from Whippingham Heights leaving 9 from the rest of Whippingham Village.

29.0 WAS THE USER FREELY, OPENLY AND AS OF RIGHT?

29.1 I Find that the Whippingham Road gate was open or openable for a large part of the 20 year period. I reject Mrs Targett’s Evidence that the gate was always 3 feet open from the mid 1980’s and effectively rusted in position. I Find that there were short periods during the early 1990’s when it was padlocked but that was not a consistent policy and the lock/or chain were not renewed if broken or worn. I Find that the gate was in operation at the time Mr Rann caused the field to be cleared in 1995.

29.2 In addition to gaining entry via the Whippingham Road gate there were a number of informal entry points to the Site which were created over the years, enlarged, stopped up by GKN and then re-opened either in the same position or close by. Among these were the gap in the hedge at the South East corner, the entry made in the vicinity of the layby on Whippingham Road, a number of other entries made along the Southern boundary adjoining the public footpath and entries made in the hedge on the Western perimeter, dividing the Site from the Pony Field. These latter entries were sometimes made by children setting fires in the hedge and sometimes by people beating a way through.

29.3 Further, entry to the Lower Field was made via the Beatrice Avenue gate which was subsequently stopped up with wood and screws and barbed wire. Some people would use this entrance to gain access to the Lower Field and through the gaps in the hedge to the Site and some people would enter via the gap at the South East corner, cross the Site and enter the Lower Field through the same gap. Mr Gill stopped up the gaps between the Pony Field and the Site when he was in occupation and I Find that his attempts were frustrated by people who would cut or twist the wire in order to get through the hedge. I do not think that the barriers made by Mr Gill were temporary and removed after the Pony Club ceased.

29.4 What was GKN’s response to such means of access? I have already indicated that I am not impressed with their Case that they took speedy and effective action in all instances. I did not hear either from Mr Line or Mr Elsley and treat their Written Statements with caution. I think however, a number of general points emerge. Firstly maintaining the boundaries of the Site was a low priority on GKN’s budget. In particular, after 1987 budgetary constraints meant that apart from the boundary with the Osborne Works Site itself, any repairs to the hedge and/or fences were done on a piecemeal basis and not systematically.

29.5 Such work as was done was probably in reaction to reports received rather than as a result of a regularly carried out system of checking and maintenance. Next, I Find that in or about 1989 a discussion took place between Mr Scott and 2 Directors as a result of which a decision was made not to stop trespassers for so long as they caused no damage to the Site and for so long as they could be relied on to report to the Security Staff any instances of damage. I Find that in consequence of this those users of the Site who said that they talked to Staff across the boundary with the Osborne Works Site are probably right.

29.6 I Find that no notices were erected during the 20 year period indicating that entry to the Site would be contentious and that no one on the Site was asked to leave. There was a quantity of Evidence dealing with the position after the end of the period and although it is not strictly relevant to this Enquiry I Find that a number of measures were taken in 1993.

30.0 THE MAIN ISSUES

30.1 In the light of the Evidence and my Findings of Fact I now turn to consider the six issues which I mentioned in Chapter 15:

Has There Been Use Of The Land The Subject Matter Of The Application To Register

30.1.1 In my view, there is Evidence of some use of some parts of the land. However, in view of my Finding that until 1995 activity in the Site was limited to the central and perimeter paths because of the nature of the terrain and vegetation I do not think the Applicant has established that it can be said for all practical purposes that the whole of the Site has been used for the relevant period within the Cheltenham criteria. Furthermore, I have Found that for at least 3 years of the period part or parts of the left hand half of the Site were not available for use as they were under cultivation as Allotments.

30.1.2 In some ways it may be said to be hard on an Applicant who cannot in the very nature of things prove which plots were under cultivation and which were not at any point in time, particularly when the number under cultivation was gradually diminishing over a period of years. On the Findings of Fact I have made I cannot Find that substantially the whole of the Site was available because, all other considerations apart, there were up to 6 Allotments each measuring 22 metres by 7 metres under cultivation for the whole or part of the first 3 years of the 20 year period. In my view, that is sufficient to rule out any part of the left side of the Site from being Registered as a VG, because the Applicant cannot establish that substantially the whole thereof was available for use throughout the 20 year period.

30.1.3 Different considerations apply in the Case of the right hand half because none of that was every cultivated. In the Case of the right hand half of the Site, my Finding that there were pigs in the piggeries until 1982 or 1983, and that the pigsties themselves were in existence until the late 1980’s or early 90’s means that that part of the Site, particularly as it became very overgrown after the piggeries ceased to be occupied was not available for public use.

30.1.4 There is no Evidence that the ploughing of the fire break in 1988 made a previously accessible part of the Site inaccessible and, on the contrary, I would have thought instinctively that the reverse was the case.

30.1.5 I have Found that Rig 28 apart, the Flagellation Rigs in operation would not have prevented anyone using any part of the Site. I cannot on the Evidence identify when Rig 28 was in operation other than to say it was in operation until 1987 and probably more frequently in the years between 1982 and 1984. On the Evidence, I would not treat as available for use any part of the field which would have been affected by the operation of Rig 28. There is no precise Evidence as to the arc of Rig 28 or the distance which objects might be projected over but I Conclude that it would probably have been about the same as the range of Rig 29 ie. approximately 15 metres. That seems to accord with the photographic Evidence of the trees which were cut back.

30.1.6 The taking of the annual hay crop between 1995 and 2002 is another matter which I have to consider in relation to the use of the land during the 20 year period. A sharp distinction must be drawn between activities such as mowing or rolling a playing field which are wholly consistent with the maintenance and improvement of a Green and agricultural activities properly so called which will interrupt the use or enjoyment of the field. In Laing the High Court considered that the Inspector had not sufficiently considered this point and in particular whether use by local residents of the Site in question so as not to interfere with the taking of a hay crop for over half of the 20 year period, should have suggested to the land owner (Laing) that those using the fields believed they were exercising a Public Right, which it would have been reasonable to expect Laing to resist.

30.1.7 The Applicant makes the point which I accept that in Laing the activity was a specific agricultural activity with a view to a crop being taken, whereas in the present Case the taking of the crop was a secondary consideration to preventing the Site becoming a fire hazard. Equally, in Laing the activity was for a significantly greater part of the 20 year period (one half as opposed to one third) than in the present Case.

30.1.8 The use of this Site did not interfere with Mr Rann’s hay cutting each year for approximately one third of the period. Ought such use to have put GKN on notice that a public Right was being asserted? If it did, would it have been reasonable for GKN to resist this?

30.1.9 In my Opinion, I do not consider that use of this Site, in a manner which deferred to Mr Rann hay cutting activities ought to have put GKN on notice that any such Right was being asserted. Local inhabitants use of the Site did not interfere with the way in which GKN chose to use their land. Consequently GKN were not put on notice that local inhabitants were exercising or asserting a public Right to use the land.

30.1.10 In Laing the only activity was agricultural. In the present instance the conclusion can be drawn more readily because of the other activities which also took place. These included burning redundant buildings, detonating flares and grazing sheep on the two halves of the Site in succession. Moreover, the Site was a point of discharge for at least two of the Flagellation Rigs. All these would lead a reasonable land owner to the Conclusion that in the absent of any protest or dissent, members of the public were acknowledging GKN’s right to use its Site as it pleased and deferring to it when GKN’s own user came into conflict with theirs. The fact that the Flagellation Rigs did not substantially interfere with user of the Site except in the limited manner I have indicated does not detract from this Conclusion.

30.1.11 I have to consider the impact of Oxford on my Conclusions. In Part VII of the Judgement (paras. 92 to 95) Lightman, J held that there was no mathematical test to be applied when deciding whether the inaccessibility of part of the land precluded the whole from becoming a Green. He held that a pond, although inaccessible, would not of necessity prevent an area being held to be a Green. Further, overgrown and inaccessible areas may be essential habitat for birds and willdlife which are the attractions for bird watchers and others. He concluded that a Registration Authority must first decide on a common sense approach whether the whole of the land the subject of the Application was used for the 20 year period for the required recreational purposes.

30.1.12 For this purpose it was to have in mind the physical condition of the land during the relevant period which could change. I have already made Findings and applied them to this part of my Report.

30.1.13 Then I have to consider Part VIII of the same Judgement ie. the relevance or existence or potential for existence of Public Rights of way. There are no established Public Rights of Way over any part of this site. In Oxfordshire the question was posed whether use for pedestrian recreational purposes of a track on land claimed as a Green would or would not qualify as use for lawful sports and pastimes. Once again, the critical question must be how the matter would have appeared to a reasonable landowner observing the use made of his land, and in particular whether the use of tracks would appear to be referable to use as a Public Footpath or for recreational activities.

30.1.14 In Laing the comment was made that a land owner might be content that local inhabitants should cross his land along a defined route, around the edge of his fields, but would vigorously resist if it appeared that a Right to roam across the whole of the fields was being asserted.

30.1.15 The distinction was made between a track which has two access points and leads from one to the other and users merely use the track to get from one of the points to the other or where the track leads to a cul de sac and an attractive view point and user where the users veer off the track or walk leisurely over the land on either side thereof or indulge in other activities on or off the track. In the present Case the central track did not lead to any particular point nor did it connect with anything other than the perimeter track. I have found that walkers in the main used either the central track or the perimeter track and if with dogs would tend to let the dogs off the lead when walking these tracks.

30.1.16 I have to ask myself adopting a common sense approach whether the user as a whole is referable to the assertion either of a Right to use the Site as a Green or as a Public Footpath. In the event, and for the reasons I have given, I do not think that it would have appeared to GKN that either Right was being asserted in this Case. I am invited by GKN to Find that the user of the Site has been limited in scope to walking with or without dogs and that such user will not have the outward appearance of being used as a Green or putting a reasonable land owner on notice that a Right to use the Site as a Green is being asserted.

30.1.17 It seems to me that the question is not whether there is a sufficiently wide range of activities being carried on as to qualify those users as a claim to establish a Green, but whether a reasonable land owner observing the activities being carried on on his land would be put on notice that a Right to use the land as a village Green was being asserted. Again, and for the reasons I have already given, I do not think that it was in the present Case.

30.1.18 In Advising the Council, I must make it clear that the subjective state of mind either of the users or the land owner is in a post-Sunningwell world irrelevant. It is not the state of mind of the user or the land owner which matters but how those activities would appear to a reasonable land owner in the position of GKN.

31.0 HAS SUCH USER BEEN AS OF RIGHT?

31.1 The expression “as of Right” means neither forcibly, nor secretly nor by permission: Sunningwell. “Forcibly” does not simply mean by use of physical force but against the will of the owner in a contentious fashion. Equally, an extended meaning has been given to the notion of “permission”. It implies not only where express permission has been given but also where permission can be implied from mall the circumstances of the Case; see: R (Beresford) –v- Sunderland CC [2002] 2WLR 693. GKN do not claim to have given express permission to any member of the public to use the site.

31.2 The evidence of Mr Scott of the discussion between the Directors in 1989 might lead to the Conclusion that implied permission was given to casual walkers, at least after that date. However, GKN do not argue their Case in that way and such an argument would in any event be inconsistent with their further argument which they made consistent attempts to exclude trespassers throughout the period.

31.3 As with user, it is no longer necessary for the Council to concern itself with the subjective state of mind of those who use the field for lawful sports and pastimes. Has GKN prevented the Applicant from showing, on the balance of probabilities, that the use which has taken place of this Site was not contentious or secretive or permissive?

31.4 On the Evidence I am doubtful whether GKN has so prevented the Applicant. Quite apart from the matter of implied consent, I doubt whether GKN took sufficient steps to put potential users of the Site on notice that their use would be contentious. No signs were erected notwithstanding an abundance of evidence that people were gaining entry to the field. The Whippingham Road gate was not consistently kept padlocked and chained and was not even shut for large periods of time.

31.5 People who went on to the Site were not driven off but in may instances spoke to members of the Security Staff without being asked to leave. It is true that some attempts were made to stop up gaps in the hedge but these were piecemeal and sporadic and in particular, did not prevent people from entering the field by the gap in the hedge in the South East corner. I accept Mr Gill’s evidence as to the attempts made by him to stop up gaps in the hedge to the Pony Field but these were frustrated by walkers who broke or twisted the wire and there is no evidence of any pattern of repair work outside the periods of time in which Mr Gill was in occupation of the Lower Field. I think there was some Evidence of resistance to entry by the Osborne Works corner but that alone would be insufficient to demonstrate that any entry elsewhere was contentious.

31.6 Accordingly, if I was satisfied (which I am not) as to the degree of user of the field claimed by the Applicant, then I would have held that GKN had not prevented the Applicant from demonstrating that such user was not contentious on the balance of probabilities. As it is however, I do not think that the matter falls to be decided upon at this point.

32.0 HAS SUCH USE BEEN FOR LAWFUL SPORTS AND PASTIMES?

32.1 In order to suggest to a reasonable land owner that a Right to use his land as a Green is being asserted, the land owner must be put on notice that the Right claimed is a general Right to all lawful sports and activities and not simply a Right to a single activity eg. walking with or without dogs. The Right, if it exists, is for local inhabitants to play all kinds of lawful games, sports and pastimes at all seasonable times of the year; Oxfordshire. In Sunningwell those activities were dog walking, playing family and children’s games, flying kites, picking blackberries, fishing in a stream and tobogganing down a slope in snow. In Steed the Court held that in modern life, informal recreation such as an evening stroll with a dog or children playing may be the main functions of a Green.

32.2 In my Judgement a distinction has to be drawn between activities which one might except would be carried on an established Green, which might well be limited to dog walking and children playing for large parts of the year, and activities which put a reasonable land owner on notice that a general Right to carry on such activities is being asserted. In the latter Case, it seems to me that there should be Evidence of a sufficiently wide range of activities over the whole of the 20 year period as would put a reasonable land owner on notice that a Right to carry them on was emerging during the 20 year period and ought to be resisted if the land owner so wished.

32.3 I do not think that the Evidence in the present Application, and my Findings on the basis of such Evidence should lead to the Conclusion that GKN ought to have been put on notice that a general Right to use this Site for all lawful sports and pastimes was being asserted. This is partly because the actual user was limited in scope and partly because the nature of the terrain for a large part of the period made any other activities practically impossible.

33.0 HAS SUCH USE BEEN BY A SIGNIFICANT NUMBER OF THE INHABITANTS OF A LOCALITY OR A NEIGHBOURHOOD WITHIN A LOCALITY?

33.1 I deal first with the issue of “locality” or “neighbourhood within a locality”. As to the former, I have already pointed out that GKN accept the Ecclesiastical Parish of Whippingham is a “locality” however, they submit that the Applicant has failed to prove that a significant number of the inhabitants of that locality have in fact used the Site in the manner alleged throughout the 20 year period. They point in particular to the fact that a substantial number of the claimed users come from East Cowes (see in particularly paragraph 1 to Apprendix ii of their Supplementary Submissions).

33.2 The Applicant invites me to Find that a significant number of the inhabitants of the Ecclesiastical Parish of Whippingham have used the Site over the 20 year period. In the alternative, he invites me to Find that Whippingham Heights Estate is a “neighbourhood within a locality” and that a significant number of the inhabitants of the Whippingham Heights Estate have used the Site. GKN deny that Whippingham Heights can be classed as a “neighbourhood” and submit that in any event the Site is outside the boundaries of the alleged neighbourhood and therefore cannot as an area qualify in relation to this Green as a matter of Law: see: Edwards –v- Jenkins [1896) 1CH 308. It is admitted that the Site is outside the area (to put it neutrally) known as Whippingham Heights.

33.3 The Ecclesiastical Parish of Whippingham includes those other parts of Whippingham which I describe in the Introduction. Accordingly, all users who come from “Whippingham” other than those from “Whippingham Heights” are users from the Ecclesiastical Parish. I have analysed in my Findings the degree of user of the Site over the 20 year period by (a) residents of Whippingham Heights and (b) residents of other parts of Whippingham and (c) residents elsewhere.

33.4 The word “significant” does not mean considerable or a substantial number. A neighbourhood may have a very limited population and a significant of the inhabitants of such a neighbourhood might not be so great as to be properly described as a considerable or substantial number: see: R –v- Staffordshire County Council ex perte Alfred McAlpine Homes Limited (“Staffordshire”). The word “significant” is an ordinary word in the English Language and whether or not user is by a significant number of people is very much a matter of impression. The number of people using the land in question must be sufficient to indicate that their use signifies that it is in general use by the local community for informal recreation, rather than an occasional use by individuals as trespassers: Staffordshire.

33.5 Has the Applicant demonstrated this? I think he has demonstrated that there has been some use of the Site throughout the 20 year period. In some cases, the Evidence, although a patchwork, can persuade an Inspector that there is Evidence from which the inference can be drawn that there was general user by the relevant community throughout the 20 year period. In others, the Evidence will point to individuals using the Site at different times during the 20 year period but no clear pattern emerging of general user sufficient to satisfy the Statute. I think this Case falls nearer to the latter category that the former.

33.6 I bear in mind the Evidence of those employees of GKN, whose Evidence I have accepted, whose offices overlooked the Site from 1991, and only observed a few casual dog walkers at any one time. In coming to this Conclusion so far as the Case is based on the proposition that user was by a significant number of the residents of Whippingham Ecclesiastical Parish is concerned, I also bear in mind that a significant number of users came from elsewhere. In coming to this Conclusion I do not think I am placing an unrealistic burden on the Applicant. I am simply recording my impressions of the Evidence.

33.7 So far as the “Whippingham Heights Estate” is concerned I disagree with GKN’s Submission that it lacks sufficient cohesion to be a neighbourhood. Geographically, it is separated from the rest of Whippingham Village by agricultural land and the Whippingham Road. Thus its identity can easily be established. Further, although it does not have any shops etc. it has a Neighbourhood Watch Scheme and my impression of the Evidence of the residents was that they considered themselves a community.

33.8 I note that in Staffordshire the Inspector Found that a similar sounding housing estate was a “neighbourhood” and that this Finding was not challenged I the High Court[225].

33.9 Equally, in Staffordshire it appears that the Inspector Found that the Green claimed (Ladydale Meadow) was not within the neighbourhood (Ladydale Estate) but adjacent to it[226]. Again, it does not appear that this was challenged in the High Court or that it was suggested that Ladydale Meadow could not be a Village Green serving the Ladydale Estate for that reason. In this Case the claimed Green is separated from the Whippingham Heights Estate by the Whippingham Road but is otherwise in close proximity. The Site is not in another “locality” or even within another “neighbourhood within a locality” since it is geographically isolated by agricultural land from the remaining parts of Whippingham Village. I do not think that anything in Edwards –v- Jenkins compels to the Conclusion that because the Site is not within the exact confines of the Whippingham Heights Estate it cannot serve as a Green.

33.10 However, I still have to consider whether the Evidence leads me to the Conclusion firstly that a significant number of the inhabitants of the Whippingham Heights Estate used the Site over the 20 year period in a manner which would put a reasonable land owner on notice that a Village Green was emerging on the Site and that the user of the Site during that period was predominantly by inhabitants of the Whippingham Heights Estate. For the same reasons I give in relation to Whippingham Village as a whole, my analysis of the user and my impression of the Evidence does not lead me to such a Conclusion.

33.11 I appreciate that user by the inhabitants of the Whippingham Heights Estate is a much narrower user than user by the residents of the Whippingham Ecclesiastical Parish as a whole, and that a much smaller number of users would indicate general use but I am not persuaded that the actual use would have put GKN on notice that a general Right was being asserted. Equally, and for the reasons I have given, I do not think that the actual user was predominantly by the inhabitants of the Whippingham Heights Estate, bearing in mind my Finding that 40% came from East Cowes.

34.0 HAS SUCH USER CONTINUED FOR 20 YEARS AND HAS IT CONTINUED AFTER THE 20 YEAR PERIOD UNTIL DATE OF THE APPLICATION FOR REGISTRATION?

34.1 I can deal with both issues together because the Applicant has selected the period since June 1981 and continuing and until the date of his Application (21.06.02) as being the Period.

34.2 It is not necessary in order to establish continuity to show that lawful sports and pastimes should take place every day, or even every month or year, of the 20 year period. It is a question of fact in each case how great a discontinuity is necessary in order to prevent Rights from arising. The ultimate question is always whether such use as there has been would put a reasonable land owner on notice that a continuous Right to enjoyment of the land as a Village Green was being asserted and ought to be resisted if resistance rather than recognition was intended.

34.3 In the presence Application I have Found as Fact that there was discontinuity of user of the Site at various times and that the user of the Site was limited, from most, if not all, of the 20 year period both in scope and degree. When GKN sought to use the Site for its own purposes others deferred without objection. I Conclude that there has been an insufficient continuity of qualifying user during the 20 year period. So far as the year between June 2001 and June 2002 is concerned I have not detected any fundamental shift in the pattern of user.

35.0 GENERAL

35.1 As I have indicated earlier in this Report, I am satisfied that the motive behind this Application was to frustrate if possible the use of a portion of the Site as a Trailer Park. That local residents should wish to prevent such an occurrence is entirely understandable, but as a matter of Planning Law and Policy it is entirely outside the scope of this Enquiry. That such frustration was the object of the Application was stated plainly by the Applicant in his opening remarks.

35.2 The motive for making the Application is of course irrelevant, but I have to Judge the credibility of each Party’s Case against that background. When I look at the emerging UDP and the lack of any objection to the designation of this Site as employment land against a background of a claimed Village Green emerging, I am bound to view the Applicant’s Case with some caution. When I compare the Evidence given by the Applicant with that given by GKN I do so quite impartially and without holding any brief for either side. It is appropriate that I should say this expressly in view of the Applicant’s allegations concerning the integrity of the GKN Evidence. I simply say on the Evidence that I have heard and with the exceptions I have noted, I consider that the Applicant has failed to discharge the burden of proof cast upon him.

35.3 However, I would not wish to Conclude this Report without complimenting the Applicant on the preparation and presentation of his Case which I found helpful and which must have been a difficult task for him as a lay person. Because I have not accepted his Case does not mean that I do not appreciate the effort he put in to presenting it and although they were ultimately unsuccessful in persuading me at least, local residents ought to be grateful to the Applicant for his efforts on their behalf.

36.0 SUMMARY

36.1 In accordance with the Evidence, my Findings and my examination of the issues involved, I Advise that this Application for Registration as a VG should be rejected. I also Advise that the Council should not Register any smaller area of land within the Application than that sought by the Applicant.

36.2 If my Recommendation is accepted, it is necessary to give written reasons and such reasons should be stated to be “for the reasons set out in the Inspector’s Report dated June 30^th, 2004”.

R Belben 22 September, 2004

College Chambers

19 Carlton Crescent

Southampton

SO15 2ET

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[1] put in by Applicant in course of Closing Submission

[2] put in during course of Evidence. Appendix I

[3] Blue Bundle p290

[4] Blue Bundle p334

[5] Blue Bundle p 169 – 170 and 205

[6] Red Bundle p5

[7] Red Bundle p12

[8] Red Bundle p14

[9] Red Bundle p15

[10] Red Bundle p380

[11] Red Bundle p3

[12] Red Bundle p6

[13] Blue Bundle p217

[14] see note 1 and Chapter 19 (p76 onwards)

[15] Red Bundle p15 onwards

[16] Red Bundle p193

[17] Red Bundle p200

[18] Red Bundle p204

[19] Red Bundle p206

[20] Red Bundle p205

[21] Red Bundle p208

[22] Red Bundle p219

[23] Appendix II )

[24] Appendix II ) including both Parties Closing Submissions

[25] Appendix II )

[26] see Appendix II

[27] see Appendix II to this Report

[28] see Appendix III to this Report

[29] Blue Bundle p226

[30] Blue Bundle p164

[31] Blue Bundle p275

[32] Red Bundle p60G

[33] Green Bundle p1

[34] Red Bundle p60E

[35] Red Bundle p379A

[36] Red Bundle p248

[37] para. 75 to 83

[38] para. 9 to Appendix 1 to the Letter from Wragge & Co of April 2^nd, 2004

[39] Blue Bundle p226, para. 72

[40] Blue Bundle p164, para. 151

[41] Blue Bundle p296 at p305

[42] Blue Bundle p302

[43] Red Bundle p379A

[44] Blue Bundle p229

[45] Red Bundle p138

[46] Red Bundle p118

[47] Red Bundle p36

[48] Red Bundle pp113-117

[49] Blue Bundle p24 onwards

[50] Red Bundle p115

[51] Red Bundle p88

[52] Red Bundle p20

[53] Red Bundle p43

[54] Red Bundle p86

[55] Red Bundle p50

[56] Red Bundle p38 and p75

[57] Blue Bundle p25

[58] Red Bundle p51 – 52, p68 – 73.

[59] Red Bundle p19

[60] Blue Bundle p4

[61] Red Bundle p241

[62] Red Bundle p70

[63] Red Bundle p121

[64] Red Bundle p120

[65] Red Bundle p83 and 85

[66] Red Bundle p81 - 82

[67] Red Bundle p60E

[68] Red Bundle pp95 - 96

[69] Red Bundle p65 and letter at p66

[70] Red Bundle p65

[71] Red Bundle p36

[72] Red Bundle p65

[73] Red Bundle p66

[74] Red Bundle P76

[75] Red Bundle p59

[76] Red Bundle p97

[77] Red Bundle p98 - 103

[78] Red Bundle p61

[79] Red Bundle p26 - 27

[80] Red Bundle p36

[81] Blue Bundle p106

[82] Red Bundle p61 - 62

[83] Red Bundle p60E

[84] Red Bundle p36

[85] Red Bundle p138 - 142

[86] Red Bundle p142

[87] Red Bundle p154 - 156

[88] Red Bundle p 130

[89] Red Bundle p50 and 125 - 127

[90] Red Bundle p94

[91] Red Bundle p147 - 147

[92] Red Bundle p 79

[93] Red Bundle p157 - 158

[94] Red Bundle p150

[95] Red Bundle p77

[96] Red Bundle p104

[97] Red Bundle p108

[98] Red Bundle ?

[99] Red Bundle p107

[100] Red Bundle p110

[101] Red Bundle p111

[102] Red Bundle p119

[103] Red Bundle p112

[104] Red Bundle p137

[105] Red Bundle p147

[106] Red Bundle p150

[107] Red Bundle p157

[108] Red Bundle p125

[109] Red Bundle p154

[110] Red Bundle p128

[111] Red Bundle p130

[112] Red Bundle p165

[113] Red Bundle p169

[114] Red Bundle p173

[115] Red Bundle p132

[116] Red Bundle p136

[117] Red Bundle p167

[118] Red Bundle p175

[119] Red Bundle p137

[120] Red Bundle p163

[121] Blue Bundle p371

[122] Blue Bundle p97

[123] Blue Bundle p5

[124] Blue Bundle p346

[125] Blue Bundle p90

[126] Blue Bundle p118

[127] Blue Bundle p122

[128] Blue Bundle p75

[129] Blue Bundle p102

[130] Blue Bundle p49

[131] Blue Bundle p1

[132] Blue Bundle p10

[133] Blue Bundle p14

[134] Blue Bundle p98

[135] Blue Bundle p102

[136] Blue Bundle p100

[137] Red Bundle p195A

[138] Blue Bundle p100

[139] Red Bundle p20, Photo 20

[140] Red Bundle p227

[141] Red Bundle p216

[142] Blue Bundle p102

[143] Blue Bundle p6

[144] Blue Bundle p56

[145] Blue Bundle p56

[146] Red Bundle p191

[147] Blue Bundle p346

[148] Not in the Bundle but available

[149] Blue Bundle p360

[150] Blue Bundle p371

[151] Blue Bundle p364

[152] Blue Bundle p365

[153] Blue Bundle p91

[154] Blue Bundle p93

[155] Red Bundle p36

[156] Blue Bundle p119

[157] Blue Bundle p121

[158] Blue Bundle p56

[159] Blue Bundle p121

[160] Red Bundle p247D

[161] Red Bundle p247A

[162] Red Bundle p247C

[163] Red Bundle p236

[164] Red Bundle p237

[165] Blue Bundle p33

[166] Blue Bundle p123

[167] Blue Bundle p125

[168] Blue Bundle p125

[169] Blue Bundle p125

[170] Blue Bundle p125

[171] Blue Bundle p24 onwards

[172] Red Bundle p247A-C

[173] Blue Bundle p28 – 36 and 37 - 43

[174] Red Bundle p36

[175] Blue Bundle p76

[176] Blue Bundle p86-87

[177] Blue Bundle p81

[178] Blue Bundle p78

[179] Blue Bundle p78

[180] Blue Bundle p85

[181] Red Bundle p16

[182] Red Bundle p16

[183] Blue Bundle p88B

[184] Red Bundle pp16-17 and the photographs

[185] Red Bundle p19

[186] Red Bundle p241

[187] Blue Bundle p76

[188] Red Bundle p195A

[189] Blue Bundle p89D-O

[190] Blue Bundle p76

[191] Blue Bundle p89

[192] Blue Bundle p89A-B

[193] Red Bundle p230

[194] Blue Bundle p89E-N

[195] Red Bundle p222A

[196] see paragraph 10 to Appendix 1 of the Letter from Wragge & Co dated

2^nd April 2004 [Appendix II to this Report]

[197] Blue Bundle p88

[198] Blue Bundle p88A-H

[199] Blue Bundle p89B(i)-(iv)

[200] Blue Bundle p89

[201] Section 3: para. 3.4.1 – 3.4.7

[202] Blue Bundle p89C

[203] para. 3.5 – 3.8

[204] Red Bundle p85

[205] Blue Bundle p89D-O

[206] Blue Bundle p104

[207] Blue Bundle p106

[208] Blue Bundle p108

[209] Blue Bundle p106

[210] Blue Bundle p50

[211] Blue Bundle p53

[212] Blue Bundle p53

[213] Mr Brownrigg, Mr Elsley and Mr Line

[214] Blue Bundle p2

[215] Blue Bundle p25

[216] Blue Bundle p10

[217] Blue Bundle p13

[218] Blue Bundle p15

[219] Blue Bundle p120

[220] Blue Bundle p20

[221] Blue Bundle p20

[222] Blue Bundle p125

[223] Chapter 17

[224] Chapter 17

[225] Red Bundle p310 para. 42 - 43

[226] Red Bundle p266