Agenda item

(1)       Members of the Panel visited the site before the meeting. This visit was attended by the applicant, Mr Trevor Simmons, Mr Roger Day (landowner), Mr Frank Tipples and Mr Steven Wickham (Marden Hockey and Cricket Club) and Mrs P A V Stockell (Local Member.)

(2)       The Commons Registration Officer introduced the application which had been made by Mr Trevor Simmons under section 15 of the Commons Act 2006.   The application had been accompanied by 30 user evidence forms and had received written support from the Marden History Group and the Marden Society as well as from 19 local residents. Marden PC also supported the application.  Letters of objection had been received from 11 local residents.

(3)       The Commons Registration Officer went on to say that the landowner was Mr Roger Day who had leased it to the Marden Hockey and Cricket Club.  An objection had been received from Bircham Dyson Bell LLP on behalf of the landowner and the Club. Their grounds for objection were that the user evidence only revealed trivial and sporadic recreational use; that use had been “by right” rather “as of right” as many people had been guests of the Club and a significant number of the claimed recreational activities were the same as those undertaken by it; that the relevant locality had not been sufficiently defined and use had not been by a significant number of the residents; that the land had been fenced, with access to it being regulated by stiles and gateways which had been locked when not in use, with private notices visible; and that there was evidence that informal recreational users had been challenged.

(4)       The Common Registration Officer moved on to consider the individual legal tests.  The first of these was whether use of the land had been “as of right.”  She said that it was clear that use had not been by physical force or stealth.  However, the question of whether use had been challenged remained to be resolved as it was not clear whether the site had ever been entirely secured to prevent public access.  The Panel Members had seen the “Private Ground” notice that morning. It was, however, unclear whether this notice had always been there or had been sufficiently prominent to constitute a clear challenge to access by the public. 

(5)       A further issue was whether the claimed recreational use was by implied permission.            It was possible that if members of the Club were using the site for recreational activity, then the landowner would not have needed to challenge them, as it would have given the impression of an extension of Club membership activity rather than as the assertion of a public right.

(6)       The Commons Registration Officer said that the uncertainties described could only be resolved through further and more detailed examination of the evidence.

(7)       The second question was whether use of the land had been for lawful sports and pastimes.  The Commons Registration Officer said that the user evidence suggested that there had been a range of recreational activities, including dog walking, jogging, playing with children and ball games.  It was, however, not possible on the basis of the questionnaires to distinguish between informal and formal cricket. This was an important distinction as any member of the Club who was playing cricket would be doing so “by right” and could therefore not be considered for the purposes of establishing whether lawful sports and pastimes had taken place “as of right.” It was also unclear whether tennis activities had taken place on the application site itself or on the neighbouring tennis courts.

(8)       The Commons Registration Officer then turned to the question of whether use had been by a significant number of inhabitants of a particular locality or a neighbourhood within a locality. The applicant had specified that the locality was within the boundaries of Stanley Road and Albion Road.  The landowner had argued that this was not a sufficiently defined locality.  However, there was no reason why the parish of Marden would not suffice as a qualifying locality. 

(9)       The Commons Registration Officer explained that the term “significant number” meant that the number of people using the site had to be sufficient to indicate to the landowner that the land was in general use by the community for informal recreation.  She added that it was not, at this stage, possible to reach a safe conclusion on this point as further evidence would need to be sought to establish the amount of use that was related to the Club and how much was entirely independent of it.

(10)     The Commons Registration Officer then said that use of the application site had continued up to the date of the application in 2011 and that the user evidence forms suggested that the land in question had been used for the required 20 year period.

(11)     The Commons Registration Officer concluded her presentation by saying that she considered that the most appropriate way forward would be to hold a Public Inquiry in order to clarify the issues that currently remained unclear. This would enable the Panel to reach an informed decision as to whether the land in question was capable of registration as a Village Green.  

(12)     Mr Trevor Simmons, the applicant said that he believed that the land had been used “as of right.”  A Public Inquiry would be able to establish that a significant majority of the use had been for informal recreation as opposed to official cricket.  

(13)     Mr Simmons went on to say that he accepted that he had misunderstood the legislation when he had identified the land between Stanley Road and Albion Road as the “locality.” He referred the Panel to Appendix C of the report and said that the user evidence forms had been completed by people from the whole of Marden Parish, which he therefore agreed was the actual qualifying locality. 

(14)     Mr David McFarland said that he represented the Marden History Group and Heritage Centre, located in the village library.  The purpose of this organisation was to seek, preserve, research, inspire interest in and transmit the history of the parish of Marden.  He also, on this occasion, represented the Marden Society whose purpose was to protect the character of the village of Marden.

(15)     Mr McFarland said that the organisations he represented agreed with, and supported the applicant’s submission for the reasons set out in their letters of 9 and 14 July 2012.  These letters referred to 637 petitioners who wished to protect the cricket field, and the erection in July 2012 of notices forbidding access to the site by non-members of the Cricket and Hockey Club.

(16)     Mr McFarland then said that he wished to put the application into the wider context of the village predicament and its responses.  He quoted an extract from a comment that his organisations had posted in the village as shown below.

“The loss of a village cricket ground on which the game has been played for generations, with its attendant civilized sounds of willow on leather and polite applause, the loss of the home of the famous Marden Russets and of the green where children have played “as of right” and been entertained at times, could be seen as a significant loss of Marden’s heritage and of a community asset.

This is a sad prospect for villagers and for their children who, in more recent years, have joined the club alongside those from other areas, and can walk safely to play and spectate by right.

Ordained new housing to sustain the village could be located on already identified sites that may well be less intrusive or disruptive, and certainly less destructive of part of the village’s heritage.”

(17)     Mr McFarland then said that construction of a number of new houses in the village caused real concern to the many and delight to the few. He believed that most people accepted that some new housing and new people could help the life and economy of what he described as a splendid working village.   The burning question was where these developments would actually take place. Many potential sites had been ordained for new homes.

(18)     The Parish Council had organised two open days during the previous weekend for villagers to look at the proposed Neighbourhood Plan.  One particular exercise during this open day had encouraged villagers to place a green spot on sites where they would prefer development and red spots where not. There had not been enough space on the map to accommodate all the red spots directed at the Cricket & Hockey club ground, including the cricket field.  These had, in fact outnumbered those placed elsewhere on the map. 

(19)     The Chairman explained that the points made by Mr McFarland could not be considered by the Panel.  It could only consider whether the required legal tests had been met and could not take factors such as desirability or possible development proposals into account.

(20)     Mr Frank Tipples said that he had been the Chairman of the Marden Hockey and Cricket Club until 2012.   The majority of those entering the site had always done so through the gate in Stanley Road.  They would therefore have seen the sign on the clubhouse, which had been erected in the 1960s.  He believed that anyone who had entered the ground to watch the Club playing cricket was doing so with implied permission.  He added that challenges had been made on a number of occasions as health and safety problems would have arisen if dog walkers allowed their pets to run free on the land.

(21)     Mr Roger Day (landowner) said that the sign on the clubhouse had first been put up in 1962.  The ground had always been secure and fenced.  The stiles had been installed in order that people could retrieve the ball after it had been knocked out of the ground. 

(22)     Mr Day then said that the Marden Hockey and Cricket Club was a private members’ club which paid to play.  Money was also raised through parents paying for their youngsters to learn and practice the game.  Members of the public were encouraged to watch the cricket on match days. 

(23)     Mr Day said that claims in the user evidence forms that people had used the ground for blackberry picking and making snowmen should be understood in the context that they would be politely asked to leave whenever they had been seen doing so.  There had been instances of vandalism and hooliganism on the land which had led to this approach being adopted.

(24)     Mr Day replied to a question from the Chairman by saying that there was no financial agreement between himself and the Club.

(25)     Mr Davies noted that the locality had been identified as between the boundaries of Stanley Road and Albion Road and that the applicant himself agreed that this was a mistake. He asked whether this meant that the application should be automatically rejected.  The Commons registration Officer replied that this was not the case and that it would be one of the issues that could be considered further at an Inquiry.

(26)     Mr Pascoe asked whether the status of fee paying members of the Club had an impact on their ability to be considered as “inhabitants of a particular locality” for the purposes of Village Green registration. The Commons Registration Officer confirmed that use by fee paying members could not be considered, as their use of the site was “by right.”

(27)     Mr H J Craske said that he was completely discounting all development planning considerations.   He considered that the application could not be determined until the question had been resolved as to how much use of the land had been “by right” and how much had been “as of right.”

(28)     Mrs P A V Stockell (Local Member) said that she supported the recommendations as a Public Inquiry would enable the people of Marden to have a proper opportunity to give their views and evidence. It would also ensure that the right decision was made.  This would be in the best interests of the people of Marden where (regrettably) the application had led to a division of opinion.

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

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