Agenda item

(1)       The Panel visited the application site before the meeting.  This visit was attended by Mr Paul Watkins (landowner) and Mr Michael Lewer (Objector).

(2)       The Chairman informed the Panel that he was the Local Member for the site in question. He had not discussed the Grasmere pastures issue with the applicant Mrs Watkins. Nor had he given any help or advice to any supporter of the application.  He was therefore free to approach its determination objectively and impartially.  He asked whether anyone present had any objection to him chairing the meeting for this item.   As no one did raise any objection, the meeting continued with Mr Harrison in the Chair.

(3)       The Commons Registration Officer introduced the application which had been made under Section 15 of the Commons Act 2006.  The land in question was owned by OW Prestland Ltd (represented by Mr Watkins). This company was, in turn owned by Kitewood Estates (represented by Mr Michael Lewer.)  

(4)       The Commons Registration Officer continued by saying that the application had been considered by a Panel in February 2011 and that the decision had been taken to refer the case to a non-statutory Public Inquiry.  The Inspector had produced a 350 page report in November 2012. 

(5)       The Commons Registration Officer went on to summarise the Inspector’s findings.   She had firstly considered the question of whether use had been “as of right.”  She had heard a great deal of evidence in relation to the taking of the annual hay crop and had concluded that (whilst the landowner had tolerated public use outside the growing season between May and September each year) use by the public during the growing season had largely been confined to the footpaths and their perimeters.  Such usage had been discounted by the Inspector for the purposes of considering whether the applicant had been able to demonstrate sufficient qualifying use.

(6)       The Inspector had also considered a considerable amount of evidence in respect of fencing, notices and mounds dug around the perimeter.  Even though the small area in the north west corner had been excluded from the application, the Inspector had concluded that a locked gate had been erected at this potential entrance. She had also found that two “Private Property No Trespassing” notices had been put up in September 2004 at the earliest.  She had accepted that the fencing and mounds had not been in place after the qualifying period had ended (i.e. 14 September 2004).    

(7)       The Inspector’s overall conclusion had been that the landowner had taken sufficient action to convey to a reasonable user that his use had become contentious.  As a result, she had found that use had not been “as of right” during the growing period or during the latter part of the twenty year period.

(8)       The Commons Registration Officer went on to consider the Inspector’s findings in respect of whether the land had been used for the purposes of lawful sports and pastimes.  The Inspector had concluded that the level of use of the site had been restricted at the beginning of the relevant period during the growing season.   Had any other activities taken place at this time, they would have damaged the crops and would need to be viewed as criminal damage rather than as a lawful sport or pastime. She had therefore made the determination that the use during the growing season during this period had been associated with the public rights of way rather than as an assertion of a general right to recreate over the whole of the land.

(9)       The Inspector had accepted that South Tankerton and Chestfield were qualifying neighbourhoods within the locality of Canterbury City Council’s administrative area.  She had, however, decided on the evidence provided that whilst there had been a significant level of use during the latter part of the qualifying period she could not agree that a significant number of inhabitants from the neighbourhood had used the whole site during the growing season in the early part of the qualifying period.  

(10)     The application had been made on 14 September 2009.  In order for it to be able to succeed, use would have needed to continue for a 20 year period up to five years before the application had been made. This would have required use to have continued until 15 September 2004.  The Inspector had found that use had ceased to be “as of right” on the day that the “no trespassing” signs had been erected on 8 September 2004.   For this reason, the application had failed (albeit by only one week) to meet the required test.  The Inspector had also found that use had not taken place over a 20 year period (as a result of her findings in respect of the growing season during the early part of the application period.) 

(12)     The Inspector’s overall conclusion had been that the application should fail because the applicant had been unable to satisfy her that there had been sufficient use of the land between 1984 and 2004 to have given the appearance of the assertion of a right to use the whole of the site for lawful sports and pastimes; and because the landlord had taken steps to communicate to a reasonable that use was contentious shortly before the end of the qualifying period on 15 September 2004.

(13)     The Commons Registration Officer said that the Inspector’s full findings had been sent to interested parties for comment. The applicant had commented that the Inspector had made a number of fundamental errors in her approach. These had been, firstly that she had applied her own “reasonableness” test in deciding whether use had been “as of right” instead of simply considering whether use had been without secrecy, force or permission.  The second perceived flaw was that the Inspector should not have discounted use of the tracks across and around the application site.  The third was that there was no evidence that anyone had knowingly caused damage to crops during the growing season.  A certain amount of wear and tear had nevertheless occurred as a result of the lawful sports and pastimes that had taken place.  The applicant also considered it to be wrong in law to exclude hay meadows from registration as a village green merely because people kept off the crop whilst it was growing.  The final criticism was that the erection of two signs when there were six entrances should not be seen as an attempt by the landowner to take all reasonable steps to contest use by the public.

(14)     The Commons Registration Officer said that the applicant’s criticisms had been submitted to a different Counsel for further comment.  His advice had been that there had been little substance to the applicant’s criticisms and that there was no reason to depart from the Inspector’s findings.

(15)     The Commons Registration Officer said that in the light of the findings of the Inspector and the second Counsel, she took the view that registration of the land should not take place. She therefore recommended accordingly.

(16)     Ms E Sherratt (Kent Law Clinic) addressed the Panel on behalf of the applicant.   She said that the Inspector had found (in paragraph 17.45 of her report) that substantial use had taken place, but had moved on to had misdirect herself by applying the “reasonableness” test, as the Lewis case had superseded this approach. 

(17)     Ms Sherratt then said that use of two entrances was insufficient to convey to the public that use of the land was contentious.  Most of the public entered via The Ridgeway, where no sign existed.  This indicated that the efforts of the landowner to stop use were not proportionate to the level of use taking place and were therefore insufficient to indicate that a challenge was being made.

(18)     Mr Michael Lewer addressed the Panel in opposition to the application.  He referred to Ms Sherratt’s quotation of paragraph 17.45 of the Inspector’s report and asked the Panel to note that the “significant number of local residents” who had used the site had done so “outside the growing season.”  Her previous paragraph (17.44) had indicated that she was “not satisfied that the level of use of the land at the beginning of the relevant period during the growing season was such that it would have appeared to a reasonable landowner to have the character of the assertion of a public right to use the whole of the application land for recreation rather than the assertion of a public right of way across the tracks.”  Mr Lewer said he considered the Inspector’s comments in these two paragraphs to be entirely consistent with her findings.

(19)     Mr Paul Watkins (landowner) said that he disagreed with Ms Sherratt’s view that the erection of the two signs had not been sufficient to indicate that a challenge was being made to local use.  The applicant’s bundle had referred to a local Parish Council meeting shortly after the signs had gone up. The minutes from that meeting had recorded that lots of local residents had come to this meeting in order to give their views about the erection of these signs.

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

(21)          RESOLVED that, for the reasons set out in the Inspector’s report dated 11 November 2012 and the further advice from Counsel dated 31 January 2013, the applicant be informed that the application to register land known as Grasmere Pastures at Whitstable has not been accepted.