Agenda item

(1)       Members of the Panel visited the site prior to the application.  This visit was attended by Mr and Mrs C Perkins and Mr D Pierce (landowners).

(2)       The Commons Registration Officer introduced the application which had been made under section 15 of the Commons Act by Wickhambreux Parish Council. She confirmed that all the statutory consultation arrangements had been carried out.

(3)       The Commons Registration Officer said that the land had been owned by the Church Commissioners until 2009 when it had been sold in different plots to four separate landowners. 

(4)       The Commons Registration Officer then said that the application had been considered by the Panel on 15 November 2011 where it had been decided that a non-statutory Public Inquiry would be held to clarify the issues. This had taken place in November 2012 and February 2013, and the Inspector had provided a detailed report dated 13 December 2013. 

(5)       The Commons Registration Officer moved on to outline the Inspector’s findings in respect of the legal tests. The Inspector had concluded that use of the land had been “as of right” because use had clearly not been by force or stealth.  She had not accepted the landowners’ view that the tenant farmer waving and acknowledging people using the land constituted implied permission, and had therefore concluded that use had also not been with permission and that the test had consequently been met.

(6)       The second test was whether use of the land had been for the purposes of lawful sports and pastimes.  The Inspector had found that the vast majority of use had consisted of walking along a limited number of defined routes.  Given the size of the land, she had concluded that this did not suggest general recreational use of a nature which would have led a reasonable landowner to consider that a right was being asserted to indulge in lawful sports and pastimes over the whole land. The test had not been met because the majority of use was not “qualifying use” and the remainder (which was no more than “trivial or sporadic”) was insufficient to give rise to Village Green registration.

(7)       The Inspector had then considered the third test, which was whether use had been by a significant number of inhabitants of a particular locality or a neighbourhood within a locality.  The Inspector had found that the two civil parishes of Wickhambreaux and Ickham did constitute a locality.  She had, though, not accepted that the applicants had been able to identify a sufficiently cohesive neighbourhood to meet the requirements of the Commons Act 2006. Consequently, she had concluded that the test had not been met.  She had, therefore, not gone on to consider whether use had been by a significant number. The Commons Registration Officer said that in the event that the Inspector had been satisfied on the neighbourhood question, her findings in respect of the lawful sports and pastimes test would have precluded her from finding that use had been by a significant number of its inhabitants.

(8)       The Commons Registration Officer briefly explained that the Inspector had been satisfied that use of the site had ceased less than two years prior to the application, and that use had taken place over a period of twenty years or more (apart from a small amount of the land which had been enclosed for two months in 1998 by the Environment Agency for borehole drilling works). 

(9)       The Commons Registration Officer moved on to summarise the Inspector’s conclusions which were that the application should fail because the applicants had been unable to identify a cohesive neighbourhood; that the Registration Authority had no power to substitute a differently defined neighbourhood (which would, in any case, have been unfair to the landowners if it had done so); that the majority of use of the land had been for “rights of way” type use rather than for lawful sports and pastimes over the whole of the land; and that the amount of use that qualified as “lawful sports and pastimes” was insufficient for registration to take place.

(10)     The Commons Registration Officer said that the Inspector’s report had been sent to the applicants and the landowners for comment.  Wickhambreaux PC had expressed its disappointment at the Inspector’s recommendations, pointing to the 160 user evidence questionnaires, 60 witness statements and the photographic evidence it had provided.  One of the landowners had replied giving his full support to the recommendations and praising its meticulous detail.

(11)     The Commons Registration Officer recommended to the Panel that it should reject the application for the reasons set out in the Inspector’s report.

(12)     Mr C Perkins (landowner) said that he did not agree with Wickhambreaux PC’s claim that the issue had been one of access. The landowners had made a number of offers to the Parish Council. These were access during daylight hours, the permitted use of 4 acres of the land, and a permissive footpath along the river bank. All of these offers had been rejected.

(13)     Mr Perkins said that Wickhambreaux PC had complained about the number of witnesses that the Inspector had chosen to hear from.  He disagreed with this view because there had been 23 witnesses from the applicant’s side.  This would have been more than sufficient to make the case if it had been sufficiently strong.  He also disagreed with the Parish Council’s view that the user evidence questionnaire should contain a legal definition of neighbourhood, noting that the applicants had provided guidance notes to their witnesses.

(14)     Mr Perkins said that he wished to thank Ms Melanie McNeir and the Public Rights of Way Team for the professionalism and impartiality that they had shown throughout the process.

(15)     Mr T A Maddison moved, seconded by Mrs V J Dagger that the recommendations of the Head of Regulatory Services be agreed.

                                                            Carried unanimously 

(16)     RESOLVED that for the reasons set out in the Inspector’s report dated 13 December 2013, the applicant be informed that the application to register land known as Seaton Meadow at Wickhambreaux has not been accepted.