Agenda item

(1)       Members of the Panel and Ms S C Carey (the Local Member) visited the application site shortly before the meeting.   Mr S Huntley, the applicant was present as were Ms A Rodgers, the landowner’s representative and some 12 members of the public.

(2)       Ms S J Carey was present for this item pursuant to Committee Procedure Rule 2.21 and spoke.

(3)       Correspondence from Lyminge Parish Council was tabled at the meeting. This set out that although the Parish Council neither supported nor opposed the application, it believed that the criteria for registration had been met.

(4)       Mr Huntley and Ms Rodgers were also present at the meeting together with Mrs H Burr (supporter) and some 9 members of the public.

(5)       The Public Rights of Way and Commons Registration Officer introduced the application, which had been made under Section 15 of the Commons Act 2006 by Mr S Huntley.   She acknowledged that a question had been raised during the site visit about the exact boundary of the southern part of the application site and informed the Panel that this question would be thoroughly addressed at the earliest opportunity.

(6)       The Public Rights of Way and Commons Registration Officer said that the application had been accompanied by 85 user evidence questionnaires together with supporting correspondence and the view from Lyminge Parish Council that the application passed all the necessary tests.

(7)       Objections had been received from Cripps Harries Hall Solicitors on behalf of the Tory Family Foundation which owned the land.  The grounds for objection were that the application had not specified its neighbourhood or locality within the neighbourhood; that use had been infrequent; that use had been “by right” on the Public Right of Way; that use had been interrupted during the summer of 2010 by the archaeological dig which had resulted in the site being cordoned off; and that there had not been sufficiently general for the landowner to realise that a public right was being asserted.

(8)       The Public Rights of Way and Commons Registration Officer then considered the legal tests.  The first of these was whether use of the land had been “as of right.”  It was clear that neither force nor secrecy had been used to access the site.  Although fencing had been erected, this had been a recent development and could not form part of the Panel’s considerations of this particular test.  There had, however, been a few occasions when the landowner had stated that permission had been granted for certain specific events.  The applicant, on the other hand contended that even though permission had been granted on occasion, this did not apply to informal recreational use and therefore did not negate the general assertion by the public of “as of right” use. The landowner had also contended that much of the use of the land had been “by right” walking of the Public Right of Way. 

(9)       The Public Rights of Way and Commons Registration Officer said that the use “as of right” question was very difficult to resolve on paper. The best way to do so was to scrutinise the evidence through careful cross-examination.

(10)     The Public Rights of Way and Commons Registration Officer then considered the question of whether use of the land had been for the purposes of lawful sports and pastimes.  The user forms did include such activities as sledging, cycling and playing.  However, most of the responses stressed walking.  It was difficult for her to assess on paper whether this activity was something which had occurred through use of the Public Right of Way, and a closer examination of the evidence would be able to clarify this particular question.

(11)     The Public Rights of Way and Commons Registration Officer said that, on balance, it was likely that use had been by a significant number of inhabitants of the parish of Lyminge – although there was a dispute on the part of the objector about the actual degree of use. 

(12)     The Public Rights of Way and Commons Registration Officer said it was clear that use of the site had continued up to the date of the application.  The question of whether this use had been for a period of twenty years or more was more complex because the applicant was contending that use had been interrupted by the archaeological dig in 2010, by sheep grazing and car parking. The applicant argued that the application had been made before the archaeological dig, that the sheep grazing had encouraged public use and that the car parking was for such a short duration that it became inconsequential in the context of a period of 20 years.

(13)     The Public Rights of Way and Commons Registration Officer concluded her presentation by saying that due to the complexity of the issues involved (particularly in respect of the use of the public right of way) she was recommending that a non-statutory public inquiry should be held to clarify the issues.

(14)     The Chairman asked whether permission to use the site had ever been refused by the landowner. Ms Rodgers (on behalf of the landowner) replied that permission had been refused since the application had been made.

(15)     Mr Stephen Huntley (applicant) said that he loved and respected the countryside and would never knowingly trespass on someone else’s land.  He would always stick to rights of way unless he believed that there was open access.

(16)     Mr Huntley said that he had lived in Lyminge since 1983 and that he had played as a child on the field.   He produced photographs of BMX riding, pointing out that this activity took place on bumpy ground which was not on a public right of way. 

(17)     Mr Huntley continued by saying that many people of all ages had used the whole field.  He highlighted a number of activities including playing, walking, petting the grazing sheep and tobogganing. He showed a photograph of sledging on the site, pointing out that no one in the picture was doing so on a right of way.   He said that such activities had continued into his children’s generation.  He showed a number of other photographs of other activities taking place on the site.

(18)     Mr Huntley showed a picture of the site taken from GoogleEarth in 2004. He asked the Panel to note that it was difficult to distinguish the public rights of way because there were other tracks on the site where people had also walked.   He said that no one had ever told anyone to not use the field or to stick to the public right of way.  The fencing and gates that Members had seen during the site visit had only been installed during the last few months.

(19)     Mr Huntley said that his motive for bringing forward the application was to preserve the right for local people to continue to use the land as before whilst also preserving its agricultural and amenity value. He had deliberately chosen not to widely publicise the application. Nevertheless, it had achieved widespread support, with 85 people completing user forms and the Parish Council stating its view that the land met the required legal tests for registration.

(20)     Mr Huntley concluded his presentation by saying that the site was a special place for him and for other people.  Many people had used the land regularly for lawful sports and pastimes in an open and unchallenged manner; and this use had mainly been on parts of the site which had not been designated as public rights of way.  He had personally used the land since 1983, whilst others had used it well before that time.

(21)     Mrs Rodgers said that she had a written statement from the landowner, Mr Tory.  Because of the recommendation in the report, she did not feel that it would be appropriate to ask the Panel to consider it in detail at this stage.

(22)     The Panel agreed unanimously that it would defer consideration of this matter pending a non-statutory Public Inquiry for the reasons set out in the report and explained at the meeting by the Public Rights of Way and Commons Registration Officer.

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