Agenda and minutes

(1)       The Chairman informed the Panel that the Local Member, Mr A J King had sent his apologies owing to a clash with other Council business.  He had expressed his support for the application. 

(2)       The Commons Registration Officer began her presentation by saying that the application had been made by Mr E Bates under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2008.  Objection had been received from the Landowner (Canterbury Diocesan Board of Finance). The Panel had considered the application in September 2013 and had referred the matter to a non-statutory Public Inquiry.  The Inspector had produced a detailed report dated 25 September 2014. 

(3)       The Commons Registration Officer went on to summarise the Inspector’s findings in respect of the tests that had to be met in order for registration to take place. The first of these was whether use had been “as of right.”

(4)       The Inspector had examined the landowner’s contention that use of the land had been by force because two of the entrances had been created by users creating a hole in the hedge. The Inspector’s conclusion on this point was that although this may well have been the original method of entry, those who had used it afterwards had done so without knowledge of the original damage and that the gaps were sufficiently wide for them to have continued to use these entry points without force.

(5)       The Inspector had also considered whether use had been with permission. The landowner had contended that (as in the Barkas case) the land had been set aside for the purposes of public recreation and was therefore incapable of registration. The Inspector had concluded on this point that there had been no power conveyed by statute upon which the landowner was seeking to rely in this case (section 507A of the Education Act 1996) to allow local authorities to make playing fields available other than to those receiving primary or secondary education. The Barkas case therefore did not apply in this instance.

(6)       The Inspector had also considered another point raised by the landowner that the village fete had been held on the site every summer. This had involved people gaining admission by buying a programme. On one occasion, the Parish magazine had advertised the event as taking place “by kind permission of the head teacher.” The Inspector’s conclusion had been that the fete committee had been acting in the same way as any other local inhabitant and that (crucially) permission to hold the fete had not been sought from the landowner.  It could not, therefore, be inferred that use had taken place through implied permission.  Use of the land had consequently been “as of right” up to the fete in June 2011.

(7)       The Commons Registration Officer then informed the Committee that the Inspector had concluded that there was a great deal of evidence to demonstrate that use of the land had been for the purposes of lawful sports  ...  view the full minutes text for item 4.

(1)       The Chairman informed the Panel that he was the elected Member for Whitstable.  He had not taken part in any debate or discussion on this item and was able to approach its determination with a completely open mind.

(2)       The Commons Registration Officer began her presentation by saying that the application had been made by under section 15 of the Commons Registration Act 2006 by Mr P McNally on behalf of the Whitstable Beach Campaign. 

(3)       The Commons Registration Officer went on to say that the majority of the application site had been the subject of an application submitted in 1999 under rg Commons Registration Act 1965. This application had been refused following a Public Inquiry on three grounds. Two of these grounds were no longer applicable because the land which had become available for use as a result of the sea defence works of 1988/89 had now been in existence for well over the necessary 20 year period; and because it was no longer necessary to be able to demonstrate that use had been predominantly by residents of the neighbourhood or locality. 

(4)       The Commons Registration Officer then said that the third reason for rejecting the original application had been that a letter from the landowner had been published in the local newspaper in 1993 stating that the Whitstable Oyster Fishery Company had “always encouraged people to use the beach”  and that “dog-owners are welcome to use the beach..”  The question as to whether this letter was relevant to the present application needed to be explored further.

(5)       The Commons Registration Officer continued that the Whitstable Oyster Fishery Company had objected to the application on seven grounds which included that of statutory incompatibility.  The Company had been created by statute. Its view was that unlimited access to the beach by local people would be incompatible with its statutory functions. 

(6)       A further objection had been received from Canterbury CC (which owned a small part of the land). The main grounds were that registration would impede its ability to undertake coastal protection works under section 4 of the Coast Protection Act 1949.  The City Council was therefore relying on the argument of statutory incompatibility as established in the Newhaven case.

(7)       The Commons Registration Officer then turned to the legal tests, The first of these was whether use of the site had been “as of right.”  The applicant disputed the relevance of the April 1993 letter because it pre-dated the 20 year period of the current application and because the original decision had, in any case, pre-dated the outcome of the Beresford case, which it had been held that permission had to be communicated and irrevocable. The landowner, on the other hand, contended that the effect of the April 1993 letter had continued after that date and that it would be wrong to consider that the permission conveyed within that letter had expired as soon as it was written.  The Commons Registration Officer added that there  ...  view the full minutes text for item 5.

(1)       The Commons Registration Officer briefly explained that the application had been made by Kingsnorth PC under section 15 of the Commons Registration Act 2014.  During the consultation process, Ashford BC had provided evidence which demonstrated that the land in question was held in part under the provisions of section 10 of the Local Government Act 1976 (which gave power to a local authority to provide such recreational facilities as it saw fit); and in part under section 9 of the Open Spaces Act 1906 (which gave power to a local authority to acquire and maintain land as open space).  The Borough Council had consequently contended that recreational use had taken place “by right” and not “as of right.”

(2)       The Commons Registration Officer then said that Kingsnorth PC fully accepted Ashford BC’s position.  She had informed the applicants that the County Council ought still to formally to determine the application.  She therefore recommended that the application should be refused. This was agreed unanimously.

(3)       RESOLVED that the applicant be informed that the application to register land at Langney Drive at Kingsnorth as a Village Green has not been accepted.

(1)       The Commons Registration Officer briefly reported that the application for voluntary registration had been made under section 15 (8) of the Commons Act 2006 by East Malling and Larkfield PC.  As such, the legal tests which needed to be met were far less onerous than was normally the case.

(2)       The Commons Registration Officer confirmed that the necessary legal tests had been met in that a Land Registry search had confirmed that the application site was wholly owned by the Parish Council and that the qualifying locality was the civil parish of East Malling and Larkfield. 

(3)       Mrs T Dean was present for this item under Committee Procedure Rule 2.27. She said that the application was a very straight forward matter and that there had been no local objection to the principle of registration.

(4)       RESOLVED that the applicant be informed that the application to register the land known as Marlowe Road green at Larkfield has been accepted and that the land subject to the application be registered as a Town or Village Green.

(1)       Mr S C Manion informed the Panel that he was the Local Member for this application.  He had taken no part in any discussions of the application except to advise the applicants who to contact within KCC.  He was therefore able to approach the determination of the application with a completely fresh mind.

(2)       The Commons Registration Officer began her presentation by saying that it had been made by Mr R Chatfield under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2008.  The site consisted of two plots of land. The northern section had been owned by the MoD until it was sold to Ledger Farms in the 1970s. The southern section had also been owned by the MoD until being sold to a local family in 1992. 

(3)       The Panel had considered this application on 26 November 2013 and had decided to refer it to a Public Inquiry in order to clarify the issues.  The Public Inquiry had been held in June 2014. The Inspector had produced a report in October 2014. Following consideration of comments made by both parties, a revised, final version was issued on 30 March 2015.

(4)       The Commons Registration Officer moved on to describe the Inspector’s findings in respect of the individual tests for registration to take place.  The first of these was whether use of the land had been “as of right”.  The main issue had been whether use had taken place by force.  In this instance, the pertinent question was whether the use had been contentious. The Inspector had accepted the previous landowner’s evidence that he had erected fencing in 1992 and had also put up notices, but had considered that these had been “feeble” and insufficient measures to deter walkers from recreating on the site.  She had concluded, accordingly that this test had been met.

(5)       The Commons Registration Officer turned to the question of whether use of the land had been for the purposes of lawful sports and pastimes.  The Inspector had decided to discount evidence of fruit picking as it had not been possible to determine whether this activity had taken place for commercial purposes.  She had nevertheless concluded that, generally speaking, lawful sports and pastimes had taken place to some degree.

(6)       The Inspector had also considered whether the walking activities which had taken place constituted “rights of way type use” or lawful recreation. The distinction between the two was whether people were walking between two points or generally recreating. There were three paths on the site, two of which did not have specifically defined routes or destinations. The third path did, however, fulfil the “rights of way criteria.” The Inspector had therefore discounted use of that particular path.  Her overall conclusion was that the overall usage could be considered as qualifying use for Village Green registration. 

(7)       The next test was whether use had been by a significant number of inhabitants of a particular locality, or a neighbourhood within a locality.  ...  view the full minutes text for item 8.