PAPER A
Committee : REGULATORY
APPEALS COMMITTEE
Title : APPLICATION
TO REGISTER A VILLAGE GREEN AT THE FIELD OR THE OLD ALLOTMENT, WHIPPINGHAM
REPORT OF THE HEAD OF PLANNING SERVICES
PAPER A
Committee : REGULATORY
APPEALS COMMITTEE
Title : APPLICATION
TO REGISTER A VILLAGE GREEN AT THE FIELD OR THE OLD ALLOTMENT, WHIPPINGHAM
1.
The Isle of
Wight Council as registration authority has received an application to register
land south east of Osborne Works, Whippingham Road, East Cowes as a Town or
Village Green. The application is made
under Section 13 of the Commons Registration Act 1965 and the Commons
Registration New Land Regulations 1969.
2.
The
application was advertised and the consultation procedure required by the 1965
Act has now been completed. The
Committee considered the evidence and resolved that an independent Inspector be
appointed to consider the evidence at a non-statutory public enquiry and to
make a recommendation to a future meeting of the Regulatory Appeals Committee.
This report has now been received and the Committee is required to consider the
report and its recommendations.
DETAILS
OF THE REPORT
3.
The report of
Mr Robin Belben of College Chambers, Southampton was dated June 30 2004 and
received by the Council shortly thereafter.
The report consists of 149 pages of evaluation and recommendations (Part
1), plus three appendices (Part 2). Part 1 is attached as Appendix B of this
report. Part 2, which consists of the papers from the Enquiry, is available as
background papers from Legal Services or the Countryside Section, and will be
available at the meeting.
LOCATION
AND SITE CHARACTERISTICS
4.
The land the
subject of the application is shown edged with a thick black line on the plan
attached as Appendix A. The land lies
directly to the south east of Osborne Works, Whippingham Road, East Cowes, Isle
of Wight, and has an overall area of approximately 3.023 hectares (7.47
acres). The application land is
currently inaccessible to officers of the Council and therefore a comprehensive
description cannot be given. The north
eastern roadside boundary consists of recently renovated chain link fencing
with concrete posts backed with established conifers. There appears to be one main point of entry to the land, via a
large, metal gate (currently secured) situated approximately halfway along the
boundary length. It appears, from a
worn pathway, that a gap in the perimeter hedging has been used as a further
access point in the south eastern corner of the field. The remaining boundaries appear to be a
combination of chain link fencing, trees and hedging. The application land is grassland. It is apparently crossed by a number of tracks.
RELEVANT
HISTORY
5.
Factual
The land is not registered at HM Land
Registry and therefore no information is held there regarding ownership. However, the land is apparently in the
ownership of GKN plc, as a Certificate B under Article 7 of the Town and Country Planning (General Development
Procedure) Order 1995 was received by the Council dated 22 April 2002. This certifies that the land is in the
ownership of GKN plc, PO Box 56, Redditch, Worcestershire B88 0TL. The certificate was received as a part of a
planning application and was accepted by the Council at that time. Solicitors acting for the GKN group of
companies have stated in their letter of objection dated 17 December 2002 that
the land is owned by GKN Aerospace Services Ltd.
6.
Committee History
The land (or parts of it) has been the
subject of four planning applications, the first one, dating back to 1957– the
siting of a caravan on a smallholding - was refused.
In April 2002 a planning application was lodged
for use of land as commercial vehicle trailer park – approval was given but
this consent has now expired.
In February 2003 an application was
received for variation of a condition in the previous consent – to allow use of
the site on Sundays and bank holidays.
This is awaiting determination.
In December 2003 an application was
received to renew the consent to use parts of the land as a commercial trailer
park, and for emergency marshalling of cars. Consent was granted.
A paper concerning the Village Green
application on this site was submitted to the Committee on 11 April 2003, but
the application was deferred to allow consideration of further evidence
received.
A second paper concerning the Village Green
Application was then submitted to the Committee on 27 June 2003. It was
resolved that an independent Inspector be appointed to consider the evidence at
a non-statutory public enquiry and to make a recommendation to a future meeting
of the Regulatory Appeals Committee.
The public enquiry was arranged by the
Inspector and held from 5-8 January 2004.
This present paper has been prepared to
bring before the Committee the report of the Inspector.
COUNCIL
POLICY
1.
As registration authority, the Council has a duty to
fairly dispose of the application on its merits and furtherance of Council
policy objectives is not relevant.
FORMAL
CONSULTATION
2. Fire
It was considered that no consultation was
necessary.
3.
Police
It was considered that no consultation was
necessary.
4.
Relevant Council Departments
24 June 2002 Development Control was
notified of receipt of the application.
08 July 2002 Legal Services was notified of
receipt of the application in order to effect Local Land Charges searches on
the site.
On 12 November 2002 notification was sent to:
Committee Services, Local Land Charges, Development Control, Planning Reception
and East Cowes Library.
5.
Parish and Town Council
The application land does not fall within
the boundaries of any Parish or Town Council.
6.
Local Member
On 12 November 2002 notification of receipt
of the application was sent to Councillor Charles Hancock.
THIRD
PARTY REPRESENTATIONS
7.
Objectors
The
identities and representations of all parties are fully considered in the
Inspectors report (Appendix B).
8.
Supporters
The
identities and representations of all parties are fully considered in the
Inspectors report (Appendix B).
FINANCIAL
IMPLICATIONS
9.
The Inspector has been paid for his report. If the
recommendation is accepted there is no further direct financial implication for
the Council.
LEGAL
IMPLICATIONS
10.
At the
meeting of this Committee on 27 May 2003, Members considered a detailed report
setting out an analysis of the law at that time relating to Town or Village
Greens. The law in relation to this subject
is particularly complex and also rapidly developing. A full analysis of the
relevant law is beyond the scope of this report.
This report has been considered by the
Council’s Legal Services prior to publication, and the Committee will also have
access to their own legal advice at the meeting. The power to appoint an
Inspector derives from the 1965 Act and 1969 Regulations, in conjunction with
S111 Local Government Act 1972.
Although there is no statutory force to the Inspector’s report, such a
procedure has become a common one, and the practice of Registration Authorities
seeking advice in this way has been referred to, without apparent criticism, in
judgments from the House of Lords and Appeal Courts.
It is important that members note the
appointment of an Inspector is to assist the Council in its registration
function. Responsibility for determination remains with the Committee
throughout.
IMPLICATIONS
UNDER THE CRIME AND DISORDER ACT 1998
11.
It is not
anticipated that the options placed before the Committee will have any
implications under the Crime & Disorder Act 1998.
12.
A matter to
be considered is whether the Council's role as Registration Authority and Planning
Authority is compatible with Article 6 of the European Convention on Human
Rights.
It is advised that there is no violation of
Article 6 for the following reasons:
(a) any decision taken by the Council is subject to subsequent control by judicial review. Although the statutory provision for judicial review is limited to the legality of the decision and not its merits, it constitutes sufficient compliance with the Convention; and, in any event;
(b) primary legislation, namely the Commons Registration Act 1965, requires the Council to take the decisions. Section 6 (2) of the 1998 Act provides that public authorities can act in a way incompatible with Convention rights where the public authority must act because of the provision in primary legislation;
(c) the Council remains the decision maker even though an Inspector was appointed. It may, however, be argued that the effect on Article 6 is not neutral as the inspector introduces an additional element of judicial objectivity.
A further matter that needs to be given consideration is the application of the rights set out in Article 1 of the First Protocol. This states that every natural or legal person is entitled to the peaceful enjoyment of his possessions. It has to be accepted that a recommendation to accept that this land be designated as village green may interfere with the rights and freedoms of the owner of the land to use the land as he may wish, this has to be balanced with the like rights of the community.
In determining the application it will be
necessary to determine whether the rights of any individual under Article 1 are
restricted and whether this is proportionate and in pursuit of a legislative
objective. If the recommendation is accepted it is advised that there is no
violation of Article 1.
13.
The Committee can:
14.
In the report to this Committee of 27 June 2003 the
reasons for appointing an Inspector were considered. The report stated:
“In contested or difficult cases, it is good
practice for the registration authority to appoint an inspector, usually
experienced counsel, to hold a public inquiry.
The inspector hears all the parties and considers all the evidence, and
then reports and recommends to the registration authority. The authority is not bound by the
inspector’s recommendations, but may generally be expected to adopt them and
decide accordingly. Such an inquiry
enables an independent judicial element to be injected with an objective
result. The expense involved may well
be justified in the saving of officer time and in the quality of the decision,
which will be very unlikely to be susceptible to judicial review.”
It went on to say:
“It is
suggested that an inspector be appointed for the following reasons:
·
The
conflicts of evidence are likely to require the invitation of statement makers
to answer questions on their evidence.
·
An
inspector is better able to issue directions and resolve disputes as to process
and admissibility of evidence.
·
A determination
hearing is otherwise likely to last several days.
Members of the Committee will retain the duty to
determine the issue in due course. They
can do so with greater confidence in the light of an inspector’s report,
following a thorough testing of evidence…
Accordingly, the recommendation is to refer this matter
to a non-statutory enquiry. This
enquiry would report back to the Committee by which the final decision must
still be taken. The Committee is not
bound to follow the recommendation of the enquiry, but normally it would be
expected to do so unless it had a valid reason to disregard it. “
This
process has now been undertaken. It is therefore not necessary for the
Committee to evaluate all the evidence which was presented to the Inspector, as
the purpose of the Enquiry was to do just that. The question before the
Committee is whether or not to accept the recommendation of the Inspector. The full reasons for the recommendation are
in the report, but there follows a précis of the key conclusions which led to
the recommendation.
15.
Summary of the Conclusions of the Inspector
References
to page numbers throughout this section refer to pages in the Inspector’s
report.
The ownership of the site has been
discussed by the applicant in the past but the Inspector reported (p10) that
“it soon emerged that nothing turned on the changes of ownership of the site
and the adjacent Osborne Works Site over the years.”
The
Inspector reported that in this case, there were six matters which must be
addressed in the Application (p20 and p138). He combined the last two of these
points together to make one, so effectively five points remained to be tested.
For the application to succeed, the applicant must successfully prove all five
of these – this means that if any one is not proven, the application must fail.
The
Inspector tested whether or not the Applicant had proven that five questions,
on the balance of probabilities, should be answered positively. The Inspector’s
questions are shown in italics.
16.
Has there
been use of the land the subject matter of the application to register?
The
inspector advises (p142) that local inhabitants’ use of the site did not
interfere with the way in which GKN chose to use their land. A reasonable land owner observing the activities
being carried out on his land would not, in the present case, be put on notice
that a right to use the land as a village green was being asserted.
Conclusion: the Inspector did not conclude that
the Applicant had, on the balance of probabilities, proven this fact.
17.
Has
such use been as of right?
The
inspector advises (p143) that if it had not been for his conclusion about use
of the land (see previous paragraph) the Objector would not have prevented the
Applicant from demonstrating that use of the field was not contentious, on the
balance of probabilities. He adds, though, that he does not think the matter
falls to be decided on this point.
Conclusion: the Inspector concluded that the
Applicant would have, on the balance of probabilities, proven this fact.
18.
Has
such use been for lawful sports and pastimes?
The
Inspector advises (p144) that the evidence in the Application, and his findings
on the basis of that evidence, should not lead to the conclusion that GKN ought
to have been put on notice that a general right to use this site for lawful
sports and pastimes was being asserted.
Conclusion: the Inspector did not conclude that
the Applicant had, on the balance of probabilities, proven this fact.
19.
Has
such use been by a significant number of the inhabitants of a locality or a
neighbourhood within a locality?
The
Inspector advises (p147) that his analysis of the use of the site, and his
impression of the evidence does not lead him to the conclusion 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 use
of the site during that period was predominantly by inhabitants of the
Whippingham Heights Estate.
Conclusion: the Inspector did not conclude that
the Applicant had, on the balance of probabilities, proven this fact.
20.
Has such
use continued for 20 years and has it continued after the 20 year period until
the date of the application for registration? (The inspector combined
two issues to consider this as one question)
The
Inspector advises (p148) that there was discontinuity of use of the site at
various times, and that the use of the site was limited from most, if not all,
of the 20 year period both in scope and in degree. He also advised that he had
not detected any fundamental shift in the pattern of use in the year between
June 2001 and June 2002.
Conclusion: the Inspector did not conclude that
the Applicant had, on the balance of probabilities, proven this fact.
21.
Overall
Conclusion: the Inspector amalgamated two of the six questions
into one. Therefore, five questions were tested against the evidence. The
Inspector concluded that of those five, the Applicant had not, on the balance
of probabilities, proven the case in four of these questions. In the remaining
question, although the Inspector concluded that the Applicant would have proven
the case, he advised that he did not think the matter fell to be decided on
that point.
22.
The
Inspector’s advice to the Council.
Apart
from his recommendations the Inspector gives further specific advice to the
Council in some parts of his report.
The
Status of the Inspector’s Report
The
Inspector writes (p13):
“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 fair 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 any point upon which it seeks
further assistance.”
Deferring
Determination
The Inspector
anticipates that the Council might consider deferring a decision pending
receipt of any Appeal Judgement in Oxfordshire
County Council –v- Oxford City Council and Robinson (“Oxfordshire”) [2004] EWHC
12 (CH at para. 66). The Inspector emphatically advises the Council not to
do this. The Inspector advises (p13) that it is not clear whether any 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.
He further advises that it would be unfair to both parties to defer
consideration of this application for yet further and for an uncertain length
of time.
Extraneous
Matters
The
Inspector advises (p14) that the Council should be careful not to allow
extraneous matters to affect its decision. He advises that some Councillors may
have local knowledge or may have received directly or indirectly information
and/or representations from their constituents. The Inspector advises that 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.
The
Weight Attached to Items of Evidence
The
Inspector anticipates that the Council might consider giving more weight to
some items of evidence that the Inspector himself did (p14). He advises that if
the Council does this, it should give each party an opportunity to make
representations. He also strongly advises against giving extra weight to such
material. The practical implications of
the Inspector’s advice in this respect are that, if the Committee is minded to
give more weight to any item than the Inspector did, a deferral would be
necessary for the appropriate consultation to occur.
Extra
Evidence
The
Inspector does not give any advice about how to treat any further evidence
which may be submitted. Nevertheless it is safe to conclude, in the light of
the Inspector’s advice in the preceding paragraph, that if the Committee is
minded to consider any new evidence, a deferral would be necessary for the
appropriate consultation to occur.
|
RECOMMENDATIONS Note:
the following recommendation is taken from the wording used by the Inspector
on page 149 of his report. To fully comply with the Inspectors recommendation
there should be no significant deviation from this wording. 23.
RECOMMENDATION THAT
the recommendation of the Inspector be accepted; and that the Council reject
this application for registration of land as a Village Green; and that the
Council do not register any smaller area of land within the application area
than that sought by the applicant; for the reasons set out in the Inspector’s
report dated June 30th, 2004. |
APPENDICES
ATTACHED
24.
Appendix A: Plan of the
application area
25.
Appendix B: The Report
of the Inspector dated 30 June 2004
BACKGROUND
PAPERS
Background
papers can be inspected at the Council’s Seaclose offices and will be available
at the meeting.
26.
The Appendices to the Inspector’s Report are
(a)
The Whippingham Community Partnership Documents
(b)
The Enquiry Documents
(c)
The Parties Closing Submissions
Contact
Point: Matthew Chatfield, Countryside
Manager F 823893
|
Head
of Planning Services A
ASHCROFT |