Venue: Council Chamber, Sessions House, County Hall, Maidstone. View directions
Contact: Andrew Tait 01622 694342
(1) The Commons Registration Officer tabled some aerial photographs of the application site, taken in 1990 and in 2005/06. She also tabled some street view images taken in 2009 prior to the land being fenced off.
(2) The Commons Registration Officer began her presentation by saying that the application had been made by Mrs A Jeffery under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2008. It had been considered by a Regulation Committee Member Panel on 19 February 2013. This Panel had accepted a recommendation to refer the matter to a Public Inquiry for more detailed consideration.
(3) The Commons Registration Officer informed the Panel that the Public Inquiry had been held over 5 days in mid July 2013 and that the Inspector had produced his findings on 30 August 2013. These had reached conclusions on the legal tests, which the Commons Registration Officer proceeded to summarise.
(4) The first test was whether use of the land had been “as of right”. The Inspector had concluded that use had certainly not taken place in a secretive manner. He had then considered whether use had been by force. Whilst there had been no physical force, there remained the question of whether use had taken place in defiance of a challenge by the landowner (either verbally or through the erection of prohibitory signage. The Inspector had accepted that the landowner had indeed put up signs in 1992 and in 2000. He did not, though, consider that these notices were sufficient to render use forcible. This was because they had only been standing for a period of between one day and two weeks at a time, and all the applicant’s witnesses had confirmed that they had not seen them. As a consequence, the landowner could not be said to have undertaken sufficient action to inform the public at large that use was being challenged.
(5) The Inspector had also considered the question of whether use had been by permission. He had concluded that, whilst the landowner had granted permission for some uses such as dog walking and football, there was still a sufficient volume of evidence to indicate that he had not done so for the majority of users. For this reason, the Inspector had advised that use had not been by permission.
(6) The Commons Registration Officer then said that the Inspector had also looked at the question of whether use had been “by right” as a consequence of being in respect of the Public Footpath. In his professional view, the descriptions in this case of activities such as dog walking and children playing were associated with the Public Footpath and therefore needed to be discounted when assessing whether use of the application site had been “as of right.”
(7) The Inspector had then considered whether use of the land had been for the purposes of lawful sports and pastimes. He had been satisfied that the such activities had taken place, citing evidence of ... view the full minutes text for item 21.