Agenda and minutes

(1)       The Panel Members visited the application site prior to the meeting in order to familiarise themselves with the land in question. This visit was also attended by a small number of residents and representatives from Hythe TC.  The Principal Legal Orders Office pointed out the cast iron plaque which detailed the gift of the land covenant in 1862 to the Town Council and that the land was reserved for public recreation.  

(2)       The Principal Legal Orders Officer introduced his report by saying that the application to register Hythe Green at Hythe as a new Town or Village Green had been received from Mr D Plumstead on behalf of the Shepway Environment and Community Network on 11 March 2016.  The application had been made under Section 15 of the Commons Act 2006 which allowed any person to apply to the Commons Registration Authority to register land as a Village Green where it could be shown that a significant number of inhabitants of any locality, or any neighbourhood had indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.  The application also had to demonstrate that use of the land had continued as of right until at least the date of application.

(3)       After briefly describing the consultation arrangements and the layout of the site in question, the Principal Legal Orders Officer said that the application had included 44 user evidence questionnaires in support.  Further support had been received from the Local Member, Mr M J Whybrow.  Hythe TC (the Landowner) had objected by stating its view that the Legal Tests for registration had not been met. 

(4)       The Principal Legal Orders Officer moved on to consideration of the legal tests themselves.  The first of these was whether use of the land had been “as of right.”  He said that the House of Lords’ judgement in the Sunningwell case had defined this term as meaning that people had used the land without force, secrecy or permission.  In this case, there was no question of force or secrecy having been used.  It was therefore crucial to establish whether use of the land had taken force with permission, which would mean that use had been “by right” rather than “as of right.”

(4)       The Principal Legal Orders Officer said that when considering a Village Green application in relation to local authority owned land, it was important to identify the powers under which it was held.  If it was held specifically for the purposes of public recreation, then use of the site would usually be by virtue of an existing permission.   In this case, the Town Council had objected on the grounds that the users of the site had been doing so by virtue of a historical covenant.   It also considered that by hosting events on the site and asserting a right to exclude the public from the land or parts of it, use of the site had been interrupted, whilst the Landowner had  ...  view the full minutes text for item 1.

(1)       The Principal Legal Orders Officer briefly set out that the application to register land known as Oakwood Park in Maidstone as a new Town or Village Green had been received on 25 January 2017. 

(2)       The Principal Legal Orders Officer explained that as part of the recent R (Cotham School) v Bristol City Council 2018 case it had been established that there was no statutory incompatibility involved in registering a school playing field as a Village Green. 

(3)       The Principal Legal Orders Officer went on to say that the western part of the application site was owned by Kent County Council and leased to the St Augustine Academy.  The eastern part was owned by Oakwood Park Grammar School, the land having been transferred to it by Kent County Council in 2011.

(4)       The Principal Legal Orders Officer then said that responsibility for determining Village Green applications normally rested with KCC.  There were, however, circumstances when it was not appropriate for County Council to do so.  In such cases, the application had to be referred to the Planning Inspectorate for determination.  This was a legal requirement rather than a matter for the registration authority’s discretion.  The circumstances when referral had to take place were set out in Regulation 26 (3) of the Commons Registration (England) Regulations 2014.  Referral had to occur where:

“the registration authority has an interest in the outcome of the application or proposal such that there is unlikely to be confidence in the authority’s ability impartially to determine it.”

(5)       The Principal Legal Orders Officer continued by explaining that DEFRA had issued guidance to Commons Registration Authorities on how to interpret this legal requirement.  This stated that:

“the registration authority should not refer a case simply because it has an interest in the outcome, but where the interest would seriously call into question the registration authority’s ability to determine it impartially…”

(6)       The Principal Legal Orders Officer then set out the previous two instances when the Panel had referred cases to the Planning Inspectorate.  In February 2011, the application at The Long Field at Cranbrook had been referred as KCC owned the land and it had been the subject of a planning application for a new care home.  Similarly, in March 2013, the Panel had referred an application of land at Bishop’s Green in Ashford because KCC (the landowner) had applied for residential development of the site. 

(7)       The Principal Legal Orders Officer said that the landowner had erected fencing which, through the exclusion of the public, benefitted the County Council’s use of the land for other purposes. This, in turn, meant that there was a clear conflict between the County Council’s positions as landowner and Commons Registration Authority. 

(8)       The Principal Legal Orders Officer informed the Panel that the objectors (including the County Council’s Property Team) had been actively engaging with the applicants in an effort to seek alternative access arrangements.  Even if the applicants were to agree to withdraw the application, there was no absolute  ...  view the full minutes text for item 2.