Agenda item

(1)       Members of the Panel visited the application site before the meeting.  The visit was also attended by Mr J Spencer from the Grasmere Pastures Residents Action Group and by Mr P Watkins of Kitewood Estates Ltd.

(2)       The Chairman informed the Panel that he was the Local Member for this application site.  He had had no connection with the application and had not previously expressed any view on its merits.  He would therefore be approaching it with an open mind.

(3)       The Public Rights of Way and Commons Registration Officer introduced the application.  She said that it was a re-submission of an application which had been rejected by the Panel in 2007.   Although there was no provision in Law for an identical application to be re-submitted, the circumstances were sufficiently different to enable a re-hearing on this occasion. This was because the new application was submitted under the provisions of the Commons Act 2006 rather than the Commons Registration Act 1965.  It contained new evidence, which had not been brought to the Panel’s attention in 2007.

(4)       The application had been submitted by the Grasmere Pastures Residents Action Group and had been accompanied by 152 user questionnaires.  It had received support from Chestfield Parish Council, whilst Canterbury City Council had raised no objection.  The landowner, OW Prestland Ltd had objected on the grounds that the specified locality was not a qualifying locality for registration; that the principal use of the site had been through exercise of the Public Footpaths which crossed the land rather than for lawful sorts and pastimes; that the land had not been used for lawful sports and pastimes during the months when hay was being grown and harvested; and that use of the site had not been as of right due to the erection of “private property” notices.

(5)       The Public Rights of Way and Commons Registration Officer then considered each of the legal tests.  In terms of whether use of the land had been “as of right”, use of the land had clearly not been through secrecy or with permission.  The question was whether it had been used by force.  There had been no fencing before 2004 but there was conflicting evidence around the “private property “signs. The objectors had claimed that there had always been such notices around the site, whilst the applicants and other users claimed either that there had been no notices before 2004 or that they could not recollect them being there.  It was also their view that the notices themselves did not refer to the land in question.   

(6)       The Public Rights of Way and Commons Registration Officer said that the objectors claimed that the principal use of the application site had been to walk along the designated footpath.  As such use would be “by right”, it could not have been “as of right” as would be necessary for the site to be registered.   The applicants, on the other hand, said that the site had been used by many residents for a great variety of purposes.   Clarification of all aspects of the “as of right” legal test could only be achieved through a non-statutory Public Inquiry.

(7)       The Public Rights of Way and Commons Registration Officer said that use of the site had been for a number of lawful sports and pastimes, such as kite flying, nature observation and playing with children.  However, the majority of use had been for the purpose of walking.  Further clarification was needed on the question of how much use had been on the public footpaths as opposed to the rest of the site.

(8)       The Public Rights of Way and Commons Registration Officer said that the application had clearly demonstrated that use had been by a significant number of people and that the locality identified by the applicants (the electoral ward of Chestfield and Swalecliffe) was, in her view, one which met the legal test.

(9)       The Public Rights of Way and Commons Registration Officer said that although fencing had been erected in October 2004 and the application had been submitted on 14 September 2009, the application did pass the test of being in use up to the date of application because the Law allowed a 5 year grace period.

(10)     The Public Rights of Way and Commons Registration Officer said that whilst it was established that use of the site had taken place for a period of over 20 years, there was doubt over the question of whether this period had been interrupted. The objectors claimed that use would have been because of the hay cropping activities, which lasted for several months of the year.  The applicants claimed that such activities would last for 3 to 4 days a year and had not prevented lawful sports and pastimes taking place.  This conflict of evidence needed the closer scrutiny that only a non-statutory Public Inquiry could provide.

(11)     The Public Rights of Way and Commons Registration Officer concluded her presentation by saying that because of the conflicting evidence that made consideration of most of the legal tests difficult to determine, the most appropriate way to proceed would be for the Panel to agree to the holding of a non-statutory Public Inquiry.

(12)     Representatives from both the applicants and objectors had previously indicated a wish to speak to the Panel.  The Panel Members considered that it would not be possible for the issues to be fully clarified during the meeting and that it would therefore not be productive to prolong the debate any further. Accordingly, Mr R A Pascoe moved, seconded by Mr A D Crowther that the recommendation set out in paragraph 59 of the report be agreed.

                                                                        carried unanimously

(13)     RESOLVED that a non-statutory Public Inquiry be held into the case to clarify the issues.