Agenda item

(1)       The Panel Members visited the application site before the meeting. This visit was attended by Mr E Bates (applicant) a representative from Goudhurst PC and four members of the public. The applicant drew the Panel's attention to the pathway which had been constructed when the new primary school was opened and used by local people to avoid the main road. He pointed out the parking on the land which occurred when church events were taking place and the chain on the vehicular entry point which prevented local residents using the land for parking. A local resident also pointed out the informal entry point adjacent to the Church Rooms, which was used by a number of people to gain access to the site.

(2)       The Chairman informed the Panel that the Local Member, Mr A J King had sent his apologies owing to a clash with other Council business.  He had asked to be kept informed of the progress of the application. 

(3)       The Commons Registration Officer began her presentation by saying that the application had been made by Mr E Bates under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2008.  The application had been accompanied by 112 user evidence forms and other evidence (including a statement detailing the history and use of the site, a copy of the leases between Kent County Council and the Canterbury Diocesan Board of Finance, notes of a meeting between the Parish Council and the landowner regarding the future of the site, photographic evidence of organised activity taking place on the land in question and a programme from the 1997 fete). 

(4)       The Commons Registration Officer went on to set out the case put forward by the applicant. This was that the site was had been used for generations on a daily basis by a significant number of local people. Although Goudhurst and Kilndown Primary School had a lease which allowed its pupils to play sport on the field, local residents had continued to use the site for their own recreation whilst ensuring that this use did not interfere with school use.

(5)       The Commons Registration Officer then described the responses from consultees.  Tunbridge Wells BC (Planning and Development) had stated that the field had been used for recreational purposes, although it could not confirm whether this use had been by a significant number of inhabitants of the locality or of a neighbourhood within a locality.  A local resident, Mr P Glyde had written in support of the application, saying that the land was in regular use for dog walking, socialising and football. He had also drawn attention to the well-attended fetes and shows which took place during the summer months.

(6)       The Commons Registration Officer continued by saying that the site was owned by the Canterbury Diocesan Board of Finance who had leased it to Kent County Council as a school playing field between the years 1966 and 2010.  The Landowner had permitted the County Council to construct a footpath in 1998 and to install two gates at either end of the pathway.

(7)       An objection had been received from Graham Boulden and Co, acting on behalf of the landowner.   The first ground for objection had been that the application was invalid as the application plan included land not owned by the landowner. The Commons Registration Officer said that this was not a factor that could, in itself, invalidate an application. Equally, the fact that the applicant had only moved into Goudhurst in 1996 (after the qualifying period had begun) did not prevent him from claiming Village Green status for the land in question.

(8)       Graham Boulden and Co’s other grounds for objection were that permission had been granted for use of the field, which signified that use had been “by right” rather than as of right; that some of the recreational use had been ancillary to the main purpose of walking along the footpath; and that part of the land was used for parking in connection with the church.  They had also drawn attention to the Newhaven Port and Properties Ltd v. East Sussex County Council case where it had been ruled that registration as a Village Green could not take place where it would be inconsistent with the statutory purpose for which the land was held.  The Commons Registration Officer advised that this decision had been overturned in the subsequent Court of Appeal judgement in the same case.

(9)       The Commons Registration Officer moved on to consideration of the individual tests for registration to take place.  The first of these was whether use of the land had been “as of right”.  She said that use had clearly not been by force or stealth.  The question of whether or not the land had been used with permission was disputed by the two parties involved. The landowner had provided a copy of a flyer advertising the 1994 village fete.  This had included the statements “by kind permission of the head teacher” and “entry by programme.”   The landowner contended that these statements demonstrated that the head teacher was entrusted by the landowner with control over the application site and that the public would consequently understood that their attendance at the fete was by virtue of his consent on behalf of the landowner.

(10)     The applicant’s contention was that the lease between the landowner and the County Council specifically restricted use to primary school children. Therefore, the head teacher would not have been in a position to grant permission on behalf of the landowner.  His permission would only have been sought to ensure that the fete would not conflict with any school activities.  The applicant had also stressed that the landowner had not been aware that formal activities were taking place on the application site. 

(11)     The Commons Registration Officer moved on to consider the views of both parties on the implications of the R Mann v Somerset County Council case where the Court had found that occasional exclusion from part of the land had been sufficient to communicate to users that their use of the whole land at other times was with the landowner’s implied permission.

(12)     The landowner contended that entry to the fete was generally by programme, which effectively amounted to a fee being charged.  This contention was supported by the local vicar, who had stated that the programmes had been sold in local shops and that the three entrances to the fetes were manned so that those who did not have a programme would be invited to purchase one in order to gain access to the field.  In the landowner’s view, the circumstances were similar in all pertinent aspects to those in the Mann case, preventing the applicant from being able to prove that use had been “as of right” for the period on question. 

(13)     The Commons Registration Officer said that the applicant’s contention was that this case was different to the Mann case in that access to the site was not secured and that even though the fetes regularly took up a lot of space, there was still plenty of opportunity for anyone else to use the rest of the land for other recreational activities whilst they were taking place. The applicant also disputed that the sale of programmes was a means of controlling admission.  They were, in reality, a means of raising funds towards the cost of the fete.

(14)     The Commons Registration Officer concluded this aspect of the application by saying that there was a conflict of fact as to the position when the site was used for fetes and other organised events, making it impossible at this stage to conclude whether use of the site had been “as of right”.

(15)     The Commons Registration Officer then briefly turned to the other tests. She said that it was clear from the evidence that use of the land had been for lawful sports and pastimes by a significant number of inhabitants of the parish of Goudhurst up to the date of application in 2011. This use had taken place throughout the required period of 1991 to 2011 and, in fact, for a lengthy period before that date.  

(16)     The Commons Registration Officer summed up by saying that as there was a conflict of fact in relation to the annual fete, the best mechanism for determining whether the “as of right” test had been met was to hold a non-statutory public inquiry.  She therefore recommended accordingly.

(17)     Mr E Bates (applicant) said that the report had concluded that four of the five requirements for land to be registered as a Village Green had been met but that there was a conflict of fact as to what the position was on days when the application site had been used for fetes and other organised events.  The report had therefore been unable to reach a conclusion on whether use of the land in question had been “as of right.”  The report had accepted that “as of right” use had taken place but was not sure whether this had been the case for the annual village fete. He therefore proposed to deal with this single question.

(18)     Mr Bates said that the fetes were organised by a committee made up of representatives from the local Scout group, the Parish Hall committee, the local school Parent Teachers Association (PTA) and the Parochial Church Council (PCC).  The chairmanship was rotated between the organisations on a rota basis each year and profits divided between the four.

(19)     Mr Bates said he wished to stress that all four organisations were made up of worthy volunteers from the local community and were distinct from, for example, staff members of the local school or church, from which they enjoyed independence and a certain distance.

(20)     Mr Bates then referred to the case of R (Mann) v Somerset saying that the difference was that in Mann the land owner had exercised his right to restrict access, whereas the annual fete on the Glebe Field Glebe was an event which the landowner had confirmed had taken place without his knowledge.  A letter dated 1^st February 2011, from the Diocese of Canterbury had confirmed (as set out in Appendix 4 of the application) “that the Diocese was unaware that use was being made of the field by the Parish and by the Fete Committee.” Mr Bates asked whether it could be made any clearer that this use had been unauthorised.

(21)     Mr Bates continued by saying that the fete committee always confirmed the date of the fete with the head teacher of the school at an early stage in order to avoid the obvious embarrassment and inconvenience of a clash of events.  However, under the restrictive terms of the lease of the field, the head teacher was not in any way able to grant permission for use on behalf of his school, KCC or the Diocese of Canterbury.

(22)     Mr Bates summed up this point by saying that the fete would always go ahead and that fete committee merely wished to collaborate with the school over the date.  The head teacher had never refused permission and any such refusal would in any case not have been accepted by the fete committee. There had therefore never been a manifest act of exclusion.

(23)     Mr Bates then said that residents were encouraged to buy fete programmes from local shops in advance or on the day to help raise funds.  On the day of the fete, volunteers with buckets and a supply of programmes were at some entrances for some of the time.  The site remained “porous” as other entry points remained vacant and that there was no attempt to “lock down”.  Many people were waved in, regardless of their possession of a programme, whilst whole families sharing a single programme were welcomed. 

(24)     Mr Bates said that he had consulted current and former organisers of the fete and that it was clear that showing or purchasing a programme had never been a prerequisite to entry to the fete. This was because not all entry points were covered by stewards or because the stewards were giving the benefit of the doubt to anyone who said they had left their programme at home or would buy one later.  Tea, coffee and cake were sold in the Church Rooms, and the lavatories were only available on site.  Foot traffic between the field and the Church Rooms was considerable and not managed.

(25)     Mr Bates referred to his own experience, saying that he had forgotten to buy a programme for this year’s event. He had not been challenged at any point despite coming and going many times on foot and by car while helping on stalls.  He said he knew of at least one other parish councillor who had similarly not been challenged when he had also forgotten to buy a programme.

(26)     Mr Bates then said that there was no restriction to access or use of that part of the land which was not actually occupied by the paraphernalia associated with the fete, and that residents who wished to do so were able to continue their sports and pastimes as of right.  Those visitors not intending to join in the fete tended to become involved by, for example, listening to live music, stopping for a drink or taking the opportunity to throw a wet sponge at their teacher or scout master held in the stocks.  All this “as of right” use was to be applauded as it had been organised by the community for the community. 

(27)     Mr Bates concluded his presentation by saying that he hoped that he had helped the committee to better understand that the organisation and management of the fete as an activity “as of right”, and that it would therefore confirm the established legal right of access as a Village Green. 

(28)     The Chairman asked Mr Bates to comment on a letter from Rev Hornsby, the former Vicar. This letter stated that the sale of programmes represented fees for admission.  Mr Bates replied that he had not previously seen the letter, but that he did not agree with its content.  He added that Rev Hornsby had never actually sat on the fete organising committee.

(29)     Mrs B Stafford (supporter) said that she had manned the Parish Council stand at the fete held in 2010.  A small child had been reported missing and a search for her had taken place all over the field.  There had been concern that she might easily have left the field because two of the entry points had not been manned.  Fortunately, she had eventually been found, safe and well. However, this story demonstrated that Mr Bates was right when he said that access to the site could easily take place unchallenged during the fetes.

(30)     Mr R Bushrod said that he had been a local resident since 1983. He had served as a Church Warden.  He said that he could confirm that there had not been any attempts to restrict access during church fetes and that the Collectors were always instructed not to do so.  He then referred to the phrase “by kind permission of the Headteacher” which appeared on the 1994 village fete flyer from 1994 (Appendix D). He said that this was simply an example of village politeness which was not intended (or understood) literally.

(31)     Mr G Boulden (Graham Boulden and Co) spoke on behalf of the landowner.  He said that he did not agree with Mr Bates’ description of the access arrangements as “porous”.  The site had become more regulated after 1996 when the footpath had been constructed.

(32)     Mr Boulden then referred to the fete flyer (Appendix D) noting that it contained the words “Entry by Programme.” This, he said would clearly convey to the average person that a right to refuse permission to enter the land would be in effect on the day of the fete. 

(33)     Mr Boulden also said that use of the footpath did not qualify as a lawful sport and pastime and that a non-statutory public inquiry would afford an opportunity to build up a more complete picture of the amount of lawful sports and pastimes that had actually taken place.  He also asked the Panel to agree that the incident involving the small child mentioned by Mrs Stafford should be understood as a single incident rather than a representative event. 

(34)     During discussion of this item, Mr Baldock said that he believed that the fact that Canterbury Diocese had been unaware that the land in question was being used for fetes and other organised events indicated that use of the land had been as of right.

(35)     Mr T A Maddison moved, seconded by Mr S C Manion that the recommendation of the Head of Regulatory Services be agreed.

                                                            Carried 4 votes to 1

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