(1) Members of the Panel visited the site of the application prior to the meeting. The visit was attended by the applicant, Mrs D Maskell; the Local Member, Mr C J Capon and three other local residents.
(2) The Public Rights of Way Officer introduced the application, explaining that it had been made by Mrs D Maskell under the Commons Act 2006. The application had been supported by 57 user evidence questionnaires. The land was owned by Shepway DC, who had objected because, in their view, there had not been 20 years continuous use of the site by a significant number of residents, and because use had not been “as of right.”
(3) The Public Rights of Way Officer set out the legal tests that needed to be met if registration were to take place. She said that the land had been used for the purposes of lawful sports and pastimes by a significant number of inhabitants of the East Ward of the Hythe Town Council administrative area (the “locality”). In addition, such use as there had been had been “as of right” and had taken place up to the date of application.
(4) The Public Rights of Way Officer informed the Panel that most (86%) of the site had been fenced off during 2002/03 for the purpose of dredging operations. Although legislation had been passed which exempted closure of the site during periods of statutory enactments (such as the outbreak of Foot and Mouth disease), this event did not qualify for such an exemption. The same applied to the eastern end of the site, which had been closed off in the mid 1990s and also during 2002 during construction of the car park. The public footpaths and their abutting grass verges were incapable of registration. For these reasons, she recommended that the land in question should not be registered as a Village Green.
(5) Mrs D Maskell (Applicant) said that in her view, the Commons Act could be interpreted to enable the Panel to disregard the period when Shepway DC had erected fencing to be disregarded. This was because the Law used the term “any enactment” when it permitted the Registration Authority to do so. The site had been fenced off to enable Shepway DC to carry out its duties under the Health and Safety at Work Act 1974. She pointed out that Shepway DC’s bundle itself claimed that the work was undertaken in such a way as to allow some public access to part of the site at all times.
(6) Mrs Maskell then said that the user questionnaires indicated that the site had been used immediately after removal of the fencing, demonstrating its continued accessibility.
(7) Mrs Maskell showed the Panel an aerial photograph and identified a green strip most of the way around the site and a triangular area at one end. She said that these areas were not Public Rights of Way and were therefore capable of registration.
(8) Mrs Maskell concluded her presentation by saying that the Panel Members should have particular regard to the term “any enactment” in the Commons Act 2006, bearing in mind that the only reason that Shepway DC had fenced the area off was to enable it to carry out its statutory duties rather than to exclude the public for any other reason.
(9) Mr Timothy Moreshead (Landmark Chambers) spoke on behalf of Shepway District Council. He said that the District Council agreed with the recommendation but that it still considered that use had not been by a significant number of people in a locality.
(10) Mr Moreshead disagreed with Mrs Maskell’s legal interpretation of the term “any enactment” by saying that Parliament had intended this term to cover those periods when it had taken the use of the land out of the control of the landowner rather than whenever the landowner(s) were carrying out their legal duties.
(11) On being put to the vote, the recommendations of the Head of Countryside Access were carried unanimously.
(12) RESOLVED that the applicant be informed that the application to register the land at Princes Parade, Seabrook as a new Town Green has not been accepted.