Agenda item

(1)       The Chairman informed the Panel that he was the elected Member for Whitstable.  He had not taken part in any debate or discussion on this item and was able to approach its determination with a completely open mind.

(2)       The Commons Registration Officer began her presentation by saying that the application had been made by under section 15 of the Commons Registration Act 2006 by Mr P McNally on behalf of the Whitstable Beach Campaign. 

(3)       The Commons Registration Officer went on to say that the majority of the application site had been the subject of an application submitted in 1999 under rg Commons Registration Act 1965. This application had been refused following a Public Inquiry on three grounds. Two of these grounds were no longer applicable because the land which had become available for use as a result of the sea defence works of 1988/89 had now been in existence for well over the necessary 20 year period; and because it was no longer necessary to be able to demonstrate that use had been predominantly by residents of the neighbourhood or locality. 

(4)       The Commons Registration Officer then said that the third reason for rejecting the original application had been that a letter from the landowner had been published in the local newspaper in 1993 stating that the Whitstable Oyster Fishery Company had “always encouraged people to use the beach”  and that “dog-owners are welcome to use the beach..”  The question as to whether this letter was relevant to the present application needed to be explored further.

(5)       The Commons Registration Officer continued that the Whitstable Oyster Fishery Company had objected to the application on seven grounds which included that of statutory incompatibility.  The Company had been created by statute. Its view was that unlimited access to the beach by local people would be incompatible with its statutory functions. 

(6)       A further objection had been received from Canterbury CC (which owned a small part of the land). The main grounds were that registration would impede its ability to undertake coastal protection works under section 4 of the Coast Protection Act 1949.  The City Council was therefore relying on the argument of statutory incompatibility as established in the Newhaven case.

(7)       The Commons Registration Officer then turned to the legal tests, The first of these was whether use of the site had been “as of right.”  The applicant disputed the relevance of the April 1993 letter because it pre-dated the 20 year period of the current application and because the original decision had, in any case, pre-dated the outcome of the Beresford case, which it had been held that permission had to be communicated and irrevocable. The landowner, on the other hand, contended that the effect of the April 1993 letter had continued after that date and that it would be wrong to consider that the permission conveyed within that letter had expired as soon as it was written.  The Commons Registration Officer added that there were a number of issues in dispute, including whether the effect of the landowner’s objection to the 1999 application had been sufficient to render any subsequent use as contentious (and therefore not as of right).

(8)       The Commons Registration Officer then said that there was also a dispute between the landowner and the applicant over the identity of the locality. The applicant had originally named Whitstable as the locality but had then sought to amend the application so as to rely on four different neighbourhoods within this locality.  The landowner considered that permitting the applicant to amend the application in this way was detrimental to the landowner. This view was disputed by the applicant.

(9)       The Commons Registration Officer moved on to give greater detail of the objections relating to the “statutory incompatibility” question, which had been informed by the outcome of the Newhaven case.  The landowner’s position was that it wished to invest in new infrastructure, but that this would be rendered impossible if registration took place because they would be prevented from erecting the necessary small structures on the beach. The City Council contended that it had a statutory to carry out coastal protection work and that this would be rendered impossible due to the Victorian statutes that protected Village Greens, and would also leave the City Council vulnerable to any injunction taken out by a local person who objected to such works taking place.  

(10)     The applicant argued that there was no case of statutory incompatibility because the Newhaven case was not concerned with an outside body (such as Canterbury CC) which might wish to exercise statutory powers on the land in question.

(11)     The Commons Registration Officer then turned to the overarching question as to whether the County Council was able to consider the application at all, given that it had already made a judgement on this matter.  This was on the common law principle of res judicata (a matter already judged).  The applicants did not believe that this principle applied in this case because the application differed from the original one; because “issue estoppel” (which prevented a litigant from raising an issue already raised in a previous case between the same parties) did not apply; and because the law itself had evolved considerably since the 1999 application.

(12)     The Commons Registration Officer explained that she had sought advice from Counsel on this case, asking whether the application ought to be rejected without further consideration in the light of the landowner’s comments.  Counsel had replied that no “knockout blow” had been delivered to the application.  She had shared this advice with both the applicants and the landowner who had each concurred with that advice.

(13)     The Commons Registration Officer concluded her presentation by saying that, owing to the many areas of legal complexity and dispute, the most effective way of determining the application was to refer the matter to a Public Inquiry in order to clarify the issues. She recommended accordingly.

(14)     On being put to the vote, the recommendations of the Commons Registration were agreed by 4 votes to 0.

(15)     RESOLVED that a Public Inquiry be held into the case to clarify the issues.