Agenda item

(1)       The Panel Members visited the application site before the meeting. This visit was attended by Mr Graham Rickett (applicant) Mr Tony Skykes (Westgate Residents Association), Mr Tom King (Local Borough Councillor) and Mr R G Burgess (Local Member). 

(2)       The Commons Registration Officer introduced the application which had been made under Section 15 of the Commons Act 2006 by Mr G Rickett.  The application had been accompanied by 71 user evidence questionnaires, a petition containing 177 signatures and a letter of support from the Westgate and Westbrook Residents Association.  During the consultation period, Thanet DC had raised no objection, whilst the local District Councillor had written to express her full support for the application.

(3)       The Commons Registration Officer then said that the landowner was the Dane Court Grammar and King Ethelbert School Trust.  Their solicitors (Winckworth Sherwood LLP) had written on their behalf to object to the application. Their grounds for objection were that the use of the site had not been “as of right” because verbal challenges had been made by the landowner; that such use had been insufficient to indicate to a reasonable landowner that a continuous right was being asserted; that the evidence provided was “skeletal and deficient”; that the overgrown state of the site supported the contention that use of the site had been minimal; and that the neighbourhood identified by the applicant was insufficiently cohesive to qualify as such.  The solicitors had also suggested that the application should be referred to a Public Inquiry before a decision was made.

(4)       The Commons Registration Officer then went on to consider the legal tests.  The first of these was whether use of the land had been “as of right.”   She said that there was a conflict of evidence in that the supporters of the application had given no indication of having been challenged and that there had been no prohibitive notices or other restriction to use of the site during (and beyond) the period in question.   The landowner, on the other hand, contended that use of the land by students would have been by implied licence; that a number of events had been given specific permission; and that verbal challenges had been made to dog walkers.  Three members of staff had provided statements to this effect.

(5)       The Commons Registration Officer gave her view that the evidence as a whole suggested that use had taken place “as of right” but that further investigation would be needed on the question of verbal challenges before an informed conclusion could be reached.

(6)       The second test was whether use of the land had been for lawful sports and pastimes.  The user evidence suggested that the land had been used for a wide range of recreational activities. The landowner, however, contended that use had been skeletal and deficient and that it was not clear whether such use as had been attested had actually taken place on the site itself (as opposed to the wider area). 

(7)       The landowner had suggested that the overgrown nature of the site indicated that use must have been limited. The applicant’s response was that the long grass referred to by the landowner had occurred during the wet summer of 2012 (outside the period in question). 

(8)       The Commons Registration Officer said that there was a clear conflict in evidence, giving rise to two different versions of events.  As such, it would require further investigation.

(9)       The Commons Registration Officer then turned to the test of whether use had been by a significant number of inhabitants of a particular locality or neighbourhood within a locality.  She said that the applicant had identified an area of housing in the vicinity of Ursuline Drive as a neighbourhood within the locality of Westgate-on-Sea Ward.  The landowner had challenged this on the grounds that the area in question lacked the cohesiveness and collective facilities necessary for it to be described as a neighbourhood.  This aspect of the test would need to be further tested as it could not be resolved based on the paper evidence.

(10)      The Commons Registration Officer said that it was also impossible to come to an informed conclusion as to whether a significant number of people had used the land. The applicant had provided 71 user evidence forms, whilst the landowner contended that there had only be occasional use.  The differences in recollection could only be resolved by further testing the evidence.

(11)     The Commons Registration Officer then said that use had clearly taken place up to the date of the application. It had also taken place over a period of twenty years (although this had to be taken in the light of the landowner’s comments.)   

(12)     The Commons Registration Officer concluded her presentation by saying that in the light of the numerous conflicts of evidence, her recommendation was that there should be a non-statutory public inquiry in order that the issues could be clarified.

(13)     In response to questions from Mr Pascoe, the Commons Registration Officer said that although the neighbourhood claimed by the applicant was a small area, there was no case law setting a lower limit on the size that a neighbourhood had to be.   The footpath that went around the land in question was not recorded as a Public Right of Way.

(14)     Mr Graham Rickett (landowner) provided the Panel with a document which addressed the question of neighbourhood.   He then addressed the objections to the application made by the landowner (summarised in paragraph 16 of the report). He said that although the landowner’s solicitors had provided evidence of verbal challenges to dog walkers, these statements had not actually specified which field these had been issued on.  From some of the descriptions given, he considered that the most likely venue for these challenges had been the Pavilion Field rather than the application site itself. 

(15)     Mr Rickett then said that the existence of 71 user evidence forms, together with the statements contained within them adequately demonstrated that there had been sufficient use to indicate to a reasonable landowner that local residents were asserting a continuous right.  The evidence given was, in his view, far greater than “skeletal and deficient” and the statement made by the landowner about the overgrown state of the site was not relevant because it related only to the year 2012 which was outside the application period.  

(16)     Mr Rickett went on to say that the landowner was wrong to rely on the implied licence for students, as their circumstances were completely different from the public who were claiming to have used the land “as of right.” 

(17)     Mr Rickett referred to both the Beresford and the Barkas v North Yorkshire County Council cases which, he said, had established that informal recreation on land owned by a local authority could not be considered as use “by right.”

(18)     Mr Rickett then said that the landowner’s representations about the overgrown nature of the site were contradicted by photographs of the site taken in October 2011, showing the site with the grass having been cut. He said that the School always cut the grass and had continued to do so until the wet summer of 2012.

(19)     Mr Rickett said that the reason he had put forward the area of housing in the vicinity of Ursuline Drive was because he had been advised to do so by KCC and also because it was a Neighbourhood Area which contained a pub, hardware store, fish and chip shop, Chinese takeaway.  It also had a shared general space, which taken together with the local shops ensured that it was a cohesive unit.

(20)     Mr Rickett said that the report quoted the judgement in the R v Suffolk County Council, ex parte Steed case.  This judgement had been widely criticised as being “judge-made law.”  The Commons Registration Officer explained that, although the judgement had been overturned, the particular quotation that appeared in paragraph 49 was still commonly quoted to demonstrate the need for the legal testes to be “properly and strictly proved.”

(21)     Mr Rickett concluded his presentation by saying that he believed that the Panel had sufficient evidence to agree the registration.  This would be beneficial to both the School and the community.  The local residents would share the costs of upkeep and would always defer to School use.  The area was full of natural beauty, which was the reason that the application enjoyed the support of Thanet DC, Westgate and Westbrook Residents Association, the Kent Wildlife Trust, the Thanet Countryside Trust as well as the local residents both through the 71 user evidence questionnaires and the 177 signature petition.

(22)     The Countryside Access Principal Case Officer clarified that the land would continue in the School’s ownership if registration took place. However, it would not be able to take any action on its land to disrupt its use by local people for lawful sports and pastimes.

(23)     Mr Tony Sykes (Westgate and Westbrook Residents Association) said that the Residents Association fully supported the application and would consider it to be a great loss if the land were to be developed.  He considered that an unnecessary cost would be incurred if the County Council decided to refer this matter to a Public Inquiry.  English Nature recommended that there should be 2 hectares of open space per 1,000 head of population. This part of Thanet had half that amount.

(24)     Mr Tom King (Thanet District Councillor) said that Westgate was the second most deprived area in the County. In addition, the 2010 National Health reports showed Thanet faced with 50 deprivation indicators.    Registration of the land as a Village Green would be of great benefit as an aid to inclusiveness.  The land was used for picnicking and had always been well kept up until the wet summer of 2012.

(25)     The Commons Registration Officer confirmed in response to a question from Mr Craske that the case of need for a Village Green was not one which the Panel was legally entitled to consider.

(26)     Ms Collette McCormack (Winckworth Sherwood LLP) said that the lack of objection to the application from Thanet DC was due to the fact that it was within the Green Wedge.  The District Council would therefore have no objection on planning grounds.  It could not, though, be surmised that the District agreed with the legal case for registration.  She added that if land was held under statute for certain purposes, it must follow that use by the public must be “by right” rather than “as of right.”  The land in question had a hardstanding and had also been the subject of lettings during the school holidays for such activities as police dog training.   No charge had been made for these lettings.   She concluded by saying that the application should be refused as it was clear that the required tests had not been met.

(27)     Mr Luxmore (Executive Head Teacher) said that of the land were registered as a Village Green he would not be able to allow the pupils to use it.  If this happened, the School would still need to maintain it. In effect, this would lead to the children paying for the upkeep of a Village green with no benefit to them. He added that people had been ejected from the land on occasions such as Sports Days.  

(28)      The Commons Registration Officer commented that the effects of registration were not a matter that the Panel could take into account in reaching its decision.  She considered that there was a conflict of evidence and that the landowner’s claim to have asserted his right to the land by ejecting people on occasions was not supported by any evidence at this stage.  A Public Inquiry was the only way of testing the evidence provided by all parties.  

(29)     Members of the Panel commented that the evidence provided by each party was disputed by the other, and that there was no possibility of coming to a safe conclusion at this point.   The only tests that had clearly been met were that the land had been used for twenty years up to the date of the application.  The question of whether the land had been used as of right for lawful sports and pastimes by a significant number of residents of a neighbourhood within a locality could not be definitively answered. 

(30)     On being put to the vote, the recommendations of the Head of Regulatory Services were carried unanimously.

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