Agenda item

(1)       Members of the Panel visited the site prior to the meeting. The visit was attended by Mrs C Le Jeune (Wickhambreaux Parish Council - applicant), Mr. J. Holdstock (Tenant Farmer) and Mr C Perkins (one of the affected landowners). Some 40 members of the public were also present at the visit.

(2)       Mr M J Northey was present for this item pursuant to Committee Procedure Rule 2.21.  

(3)       Mrs C Le Jeune (Chairman of Wickhambreaux Parish Council - applicant) and Mr C Perkins (landowner) were present for this item together with some 30 members of the public.

(4)       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 Wickhambreaux Parish Council.   This application had been accompanied by 115 user evidence forms as well as letters of support from Ickham and Well Parish Council (whose boundaries accommodated some of the site);  the Local Member, Mr Northey; the local City Councillor; Ickham, Littlebourne and Wickhambreaux Conservation Society; Wickhambreaux CEP School; and Wickhambreaux Village Hall Management Committee.   These letters all stated that use of the application site had been without restriction for many generations by local people.

(5)       The Public Rights of Way and Commons Registration Officer then said that the land had originally been owned by the Church Commissioners before being auctioned and sold to 4 separate landowners in 2009. All four landowners had objected to the application. One of them (Mr Locke from the Premier Trust) had stated that the land had not been accessed at the times during the year when it had been used for grazing.  Mr and Mrs Perkins had stated that use had been by virtue of permission and that non-permitted access had been challenged by the Tenant farmer during the grazing season. Three local residents had also disputed the user evidence. In addition, Mr J Holdstock (the tenant farmer since 1991) had said that use of the site had not been significant and had mainly consisted of people using the Public Right of Way in the north east corner of the site or the path on the north bank of the River Stour.  He had also stated that the site had been closed off during the Foot and Mouth epidemic in 2001.

(6)       The Public Rights of Way and Commons Registration Officer went on to consider the legal tests.  The first of these was whether use of the land had been “as of right”.  Whilst it was clear that neither force nor secrecy had been employed to gain access, there was an objection which claimed that use had been with permission.  The landowner had claimed that permission had been granted for a number of events. The applicant’s response to this was that such permission had not been sought for general recreation.  The question for the Panel to consider was whether permission had been communicated to the community as a whole. This did not appear to be the case.   Objection had also been raised on the grounds that use had been challenged by the Tenant Farmer. This was disputed by the applicant who said that such challenges had only been made in instances of inconsiderate use of the land and did not amount to a challenge to general recreational use.  The Public Rights of Way and Commons Registration Officer said that in the light of these factors, she had come to the view that use had probably been as of right but that a further investigation of the alleged challenges would be necessary before an informed conclusion could be reached.

(7)       The second test was whether use of the land had been for lawful sports and pastimes. The Public Rights of Way and Commons Registration Officer said that many activities had been claimed. These included walking, playing, fishing, kite flying and bird watching. The objectors disputed this, saying that they had seen very few examples of such activities and that, in any case, it would have been difficult to play with balls or to fly kites due to the overhead pylons.  There was also a dispute over the type of use.   It would be necessary to establish how much of the use claimed had been in exercise of the right to walk along the public footpath.  This was a very difficult question to consider on paper, whereas a non-statutory Public Inquiry would be able to provide clarity on this question.

(8)       The Public Rights of Way and Commons Registration Officer said that the application had specified “the neighbourhood of Wickhambreaux village with Seaton hamlet within the localities of Wickhambreaux and Ickham parishes.  This definition appeared to have satisfied the legal test relating to locality.  The question of whether use had been by a significant number of inhabitants within that locality was, however, disputed – particularly in relation to the frequency of recreational use of the site.  This was a matter which required further examination.

(9)       The Public Rights of Way and Commons Registration Officer confirmed that the application had been made well within the two year period of grace specified by Parliament for an application to be made after the erection of fencing (which constituted a challenge to “as of right” use).   The twenty year period in question was therefore 1990 to 2010.  She explained that the three month period when the site had been closed off in 2001 due to the Foot and Mouth epidemic did not defeat the application because the Commons Act 2006 had specifically exempted events of this nature from the qualifying period.  The evidence in respect of continuous use of the land was disputed. The objectors claimed that use had been interrupted during cattle grazing periods and during periods of flooding (particularly from 2000 to 2001).  The applicants, however, considered that there had been no disruption when cattle were grazing and that the River Stour levels had been very low. They did not agree that substantial recreational use had been interrupted by flooding.   The Public Rights of Way and Commons Registration Officer said that this too was a question that needed further investigation.

(10)     The Public Rights of Way and Commons Registration Officer concluded her presentation by saying that as there were so many issues that were unclear, she was recommending that a non-statutory Public Inquiry should be held in order to clarify them.

(11)     Members of the Panel commented that they did not feel that they had sufficient information to determine the application at this stage. The Chairman therefore asked whether those people who had previously indicated that they wished to address the Panel, still wished to do so.  As no members of the public now wished to speak, the Chairman put the recommendation for a non-statutory Public Inquiry to the vote. This was carried unanimously.

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