Agenda item

(1)       The Chairman informed the Panel that he was the leader of Swale BC.  He had not participated in any discussion on this application and was able to approach its determination with a fresh mind.

(2)       The Commons Registration Officer began her presentation by saying that there had been two applications under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2014 by Mr M Baldock.   The first application had been made on 25 March 2013, and the second on 30 October 2015. 

(3)       The Commons Registration Officer went on to say that as a result of the Growth and Infrastructure Act 2013, the County Council was required to write to the relevant planning authorities in order to ascertain whether the application site was affected by development or a “trigger event” (with no corresponding “terminating event”). If so, the County Council would be unable to entertain the application.   Upon receipt of the first application, all planning authorities (including Swale BC) had confirmed that the site was not subject to any “trigger events.”   The County Council had therefore published notice of the application.

(4)       During the consultation process, the landowners’ representative had noted that the site had been identified in the draft Local Plan by Swale BC, which meant that it was the subject of a “trigger event.  This was confirmed by Swale BC, who had also confirmed that the land allocation had been deleted on 20 February 2014.    The advice from Kent Legal Services was that the first application should be rejected as there was a trigger event affecting the site on the date of application.  

(5)       There had been no “trigger event” in place when the second application was submitted on 30 October 2015.  This was despite the fact that an application for planning permission had been received for a change of use of the land. This application was not published until 27 November 2015, which was after the date of application.   

(6)       The Commons Registration Officer went on to consider the second application in the light of the legal tests. The first of these was whether use of the site had been “as of right.”  The main objector had asserted that a ditch had been constructed along Cryalls Lane in 2004 and that 2 notices had been erected along Cryalls Lane in 2003. They had been unable to provide photographic evidence to this effect.  The applicant on the other hand, did not accept that use of the site had been challenged in any way during the qualifying period. .

(7)       The Commons Registration Officer turned to the question of whether the land had been used for purposes of lawful sports and pastimes.  She said that this was a question where there was a conflict of evidence.   The user evidence stated that activities included walking (with or without dogs), fruit picking, picnics and playing with children.  The landowners claimed that due to its overgrown state, use would have necessarily been limited to worn paths and tracks and that, in consequence, use would have been limited to walking a linear route. Such use would not qualify as “lawful sports and pastimes.  The applicant, on the other hand, disputed that the land was largely inaccessible and argued that even though the land may have been overgrown at some points, this did not prevent some of the activities he was relying upon.   The Commons Registration Officer said that more detailed examination was required before a conclusion could be reached on this point. 

(8)       In respect of the third test (whether use has been by a significant number of inhabitants of a particular locality or a neighbourhood within a locality) the Commons Registration Officer said that the applicant was claiming that the neighbourhood was the New Zealand Estate within the Parish of Borden.  This appeared to be a qualifying neighbourhood.  The question of whether use had been by a significant number of people from this neighbourhood was less clear as it would need to be demonstrated that use had been by a sufficient number of people to indicate to the landowner that the site was in general use by the community for recreational purposes.   It was difficult to reach a definite conclusion on this question, especially when bearing in mind that the nature of the stated use was open to interpretation at this stage.

(9)       The Commons Registration Officer said that the last two tests (whether use had continued up to the date of the application and had taken place for a twenty period) were both met, subject to the caveats set out during consideration of the first three.

(10)     The Commons Registration Officer concluded her presentation by saying that it was very difficult to assess the evidence on paper and that she recommended that the issues should be clarified by reference to a non-statutory Public Inquiry.   

(11)     The Chairman informed the Panel of correspondence from the Local Member, Mr M J Whiting who fully supported the recommendations.

(12)     Mr Mike Baldock (applicant) said that he considered the evidence to be clear.  No photographic evidence had been produced by the landowners in support of their contention that they had constructed a ditch and erected notices.  It would be impossible for the community to provide such evidence to demonstrate that these had never been installed.   He nevertheless welcomed the recommended course of action, particularly in the light of statements made about him and officers from Swale BC. 

(13)     Mr Carl Bennett (UK Power Networks) said that his interest in this matter was to ask whether it would be possible, in the event of Village Green status being agreed,   to incorporate easement which would enable his company to carry out essential maintenance work on the land in question.

(14)     Caroline Drury (Francis Taylor Building) spoke briefly on behalf of the landowner, Barratt Homes. She said that the recommendation was the entirely appropriate way to proceed.

(15)     On being put to the vote, the recommendations were unanimously agreed.

(16)     RESOLVED that:-

(a)        the original application be rejected; and

(b)                      a non-statutory Public Inquiry be held into the resubmitted application (made on 30 October 2015) to clarify the issues.