Agenda item

(1)       The Panel Members visited the application site before the meeting. This visit was attended by Mr R Fitzpatrick (applicant). 

(2)       The Chairman informed the Panel that the Local Member, Mr J E Scholes had sent his apologies owing to a clash with other County Council business.  He had indicated his agreement with the contents of the report.

(3)       The Commons Registration Officer tabled aerial photographs of the application site and then explained that the application had been made by Mr R Fitzpatrick under section of the Commons Act 2006 and the Commons Registration (England) Regulations 2008.  The application had been accompanied by 38 user evidence forms. 

(4)       The Commons Registration Officer then said that Cllr C Woodward from Tunbridge Wells BC had replied on behalf of himself, Cllr Mrs B Cobbold and Mr J E Scholes to advise that they were happy to support the application whilst having concerns that Village Green status might prevent redevelopment of community facilities from taking place.  Tunbridge Wells BC Planning had stated that it had no objection as Village Green status would not conflict with the designation of the site in the Local Plan as a “neighbourhood centre” and “important local space.”

(5)       The Commons Registration Officer then reported that an objection had been received from Mr Colin Lissenden on behalf of the Town and Country Housing Group on the grounds that part of the site was within its ownership.  The objection had also stated that the application would severely affect any future regeneration plans and deter future investment to improve the land in the best interests of the local community.

(6)       The Commons Registration Officer went on to inform the Panel that the applicant had requested a number of amendments to be made to the application. These had been agreed as they accorded with DEFRA’s guidance on the principle of fairness and because they did not cause any prejudice to any of the parties involved. 

(7)       The Commons Registration Officer then turned to the objections from the Landowner, Tunbridge Wells BC.  These were that registration of a car park, footpaths, circulation areas and walkways of a building complex were outside the scope and intention of the 2006 Act; that 62% of the users had not used the site for the full 20 year period; that several users referred to the use of the site for a “right of way” type use to access community facilities; that use of the land for organised events had been with the permission of the landowner; and that only 12 of the 2200 local residents had used the land for the full qualifying period, which did not constitute a “significant number.” 

(8)       The Commons Registration Officer went on to consider the legal tests which needed to be met for registration to take place.  The first of these was whether use of the land had been “as of right”.  She said that there was no evidence of use being either with force or secrecy.  The landowner had contended that it had granted permission for specific community events to take place and had produced a copy of an agreement with the Number One Community Trust for hire of the land for a fun day in 2009.   She said that attendance at fun days and any other organised events were not qualifying uses for the purposes of Village Green registration. There had, however, been no evidence that the fun days and fetes had involved fencing off the land, charging a fee or restricting access in any other way.  For this reason, the recent decision in the R Mann v. Somerset County Council case did not apply.

(9)       The second test was whether use of the land had been for lawful sports and pastimes.  The landowner had contended that much of the use had been linear use of the footpath.  It was also noted that some of the user evidence referred to use of the site during fetes and fun days.  The Commons Registration Officer said that there was sufficient evidence of qualifying use (even when public footpath and organised use was excluded) for this test to be met.

(10)     The Commons Registration Officer said that the applicant had specified “Showfields Estate, Tunbridge Wells and Ramslye Estate, Tunbridge Wells” as the qualifying locality. Although this did not meet the test, it was only necessary for the Registration Authority to be satisfied that there was such a locality. In this instance, the Tunbridge Wells BC electoral ward of Broadwater met the criterion.

(11)     The Commons Registration Officer went on to consider whether use had been by “a significant number” of residents of the locality.  She explained that this was not a quantative test.  Even though the landowner had objected that only 12 of the 2200 local residents had used the land for the entire qualifying period, the test was met because of the site had been sufficient to indicate that it was in general use by the community.  She referred to comments from Tunbridge Wells BC Planning in support of her conclusion.

(12)     The Commons Registration Officer then said that use of the site for recreational purposes had clearly continued up to the date of application. 

(13)     The Commons Registration Officer said that the landowner had objected that some 60% of the users had not used the site for the entire qualifying period of 1992 to 2012.  She explained that this objection had arisen through a misunderstanding of the meaning of the test.  In fact, the site had been in general use by the community throughout the required period.

(14)     The Commons Registration Officer concluded her presentation by referring to the landowner’s objection that registration of a car park, footpaths, circulation areas and walkways of a building complex were outside the scope and intention of the 2006 Act. She said that the Commons Act 2006 set out the only criteria for registration and did not specify any conditions in terms of the nature and appearance of the land.  Furthermore, the fact that the majority of the land was shown in the Borough Council’s Local Plan as being an “important open space” confirmed that the landowner was well aware of its amenity value and the recreational use made of it by local residents.  There were also no significant conflicts of fact requiring further research. She therefore concluded that all the necessary tests had been met and recommended that the land in question (as amended in (6) above) be registered as a Village Green.

(15)     Mr Manion asked whether the establishment of a children’s play area could be seen as implying that use had been with permission.  In response, the Commons Registration Officer referred to the R v City of Sunderland ex parte Beresford case, where the Court had ruled that putting up apparatus for community use did not constitute a communication of permission.

(16)     Mr T Warren (Town and Country Housing Group) said that his company owned all the land around the site.  If Village Green registration were to take place, it would stifle their community-led regeneration plans.  He contrasted the number of user evidence forms with the 100 residents from Ramslye and 200 from Sherwood who had attended local consultation meetings on his organisation’s regeneration proposals.

(17)     The Chairman clarified that the Panel was not entitled by Law to consider the representations made by Mr Warren.  The Panel had a duty to limit itself to careful consideration of whether the criteria for registration had all been met.

(18)     Mr R Fitzgerald (applicant) briefly congratulated the Commons Registration Officer on her report and presentation.

(19)     Cllr C Woodward addressed the Panel as a supporter of the application. He said that the land in question represented a community facility.  He said that he did not wish to see development inhibited and that registration of the land must not be allowed to constrain opportunities for those who lived in the area.

(20)     Mr Richard Harris (Tunbridge Wells BC Legal Services) said that his concern was whether the “significant number” test had been met.  There had to be sufficient usage to demonstrate that the land in question was in general use by the community. Yet, only 24 user evidence forms had been presented, representing some 1% of the community.  This was an extremely low response. This number was further diminished when the number of people using the footpath “by right” was deducted. He added that the land was in need of a substantial amount of investment and it would be unfortunate if this was jeopardised by such a small number of people.  

(21)     Following discussion, Mr M Baldock moved, seconded by Mr T A Maddison that the application as amended be accepted as set out in the recommendation in paragraph 58 of the report.

                                                Carried 4 votes to 1

(22)     RESOLVED that the applicant be informed that the application as amended in Appendix D of the report to register land at Showfields in Tunbridge Wells as a new Town or Village Green has been accepted and that the land subject to the application (as shown at Appendix D) be registered as a Village Green.