Agenda item

(1)       Members of the Panel visited the application site before the meeting.  The visit was also attended by Mr A Clark, Mrs A Palmer and Mrs F Cornish from the Friends of Duncan Down; and by N Strand (landowner) and his son Mr J Strand.  

(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 which had been submitted by The Friends of Duncan Down on 19 October 2009 under the provisions of the Commons Act 2006.   It had been accompanied by 50 user evidence questionnaires, photographs, newspaper cuttings and a leaflet.   Objections had been received from two of the three landowners, Mrs Lucchesi and Mrs Buchan.  They considered that use of the land had been by force as fences had been erected and cut down or otherwise damaged.

(4)       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 objectors were claiming that use had been by force.   Investigations had led to the conclusion that there had been no sign of fencing having been put up continually or recently, although there was some evidence of the remnants of old fencing.  There had also been much evidence of use being unchallenged or otherwise restricted.  

(5)       The Public Rights of Way and Commons Registration Officer said that the user evidence indicated a range of activities which qualified as lawful sports and pastimes.  These included dog walking, fruit picking, jogging, photography and bird watching.

(6)       The Public Rights of Way and Commons Registration Officer said that the applicants had specified the electoral wards of Gorrell and Seasalter as the “locality”.  Although it was unclear whether two wards could be combined to represent a “locality”, an analysis of the addresses of those who had submitted user questionnaire forms showed that most users lived in the Gorrell ward, which could appropriately be identified as such.   The number of users was also sufficient to be defined as “significant” because there were enough respondents to indicate that the land in question was in general use by the local community.  

(7)       The Public Rights of Way and Commons Registration Officer said that it was clear that use of the site had continued up to and, indeed, beyond the date of application.  It was equally clear from the evidence user forms that this use had taken place for a period of 20 years.

(8)       The Public Rights of Way and Commons Registration Officer concluded her presentation by saying that, in her professional view, each of the legal tests had been met and that she therefore recommended that the land in question should be registered as a Village Green.

(9)       Mr A Clark addressed the Panel on behalf of the applicants. He said that The Friends of Duncan Down could have collected more user evidence questionnaires but they had taken the view that there had been no need to   gather more than 50.   The purpose of making the application was to ensure that the land could be properly protected.  The organisation that he represented had achieved a number of nationally accredited awards, demonstrating that its members would work responsibly to achieve this end.  He said that all the legal tests had been passed.

(10)     Mr N Strand (landowner) said that owing to a family bereavement he had been unable to reply during the consultation period.  He fully supported the views of the other two landowners.  The land in his ownership had been farmed for 60 years, whilst the land in question had been in disrepair since the 1980s.   The northern boundary of the site had never been fenced as it was important to allow the cattle to roam.  Fencing had been put up to prevent the cattle from straying into ditches and dykes and there had been no reason to put up a second border to keep the public out.  

(11)     Mr Strand went on to say that there had not been sufficient opportunity to challenge use of the land, but whenever this had been done, the public had for the most part been apologetic and co-operative.   Fences and signs had been put up, mainly in order to prevent anti-social behaviour associated with illegal motorcycle riding.  These had been torn down.  So too had barbed wire and cord, aimed at stopping motorcycles coming on to the site. This had been torn down immediately. The most notable example had been on Christmas Eve 2009 when cord had disappeared within a day of being put up. The Police had also been involved in trying to prevent such activities.   

(12)     In response to a question from the Panel, Mr Strand said that his main reason for opposing the application was that he was concerned that Village Green status would be a personal encumbrance due to the additional costs, duties and regulations that would be imposed upon him by DEFRA.  He had no objection to walkers using the site and was also prepared to draw up a document giving powers to members of The Friends of Duncan Down to protect the site if the application fell through.

(13)     On being put to the vote, the recommendation set out in paragraph 38 of the report was agreed by 4 votes to 0 with 1 abstention.

(14)     RESOLVED that the applicant be informed that the application to register the land known as Benacre Wood at Whitstable as a new Village Green has been accepted, and that the land subject to the application be formally registered as a Village Green.