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 the application had been made under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2014 by Mr M Baldock.   It had been accompanied by 13 user evidence questionnaires and support from Borden PC on the basis that the land had been used for recreational purposes for at least 40 years. 

(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.   Swale BC had advised that the site had been identified in the emerging Swale Local Plan as “a transport issue requiring further consideration.”   They had provided a plan which showed potential improvements highway developments proposed by the developer affecting a strip of land on the western strip of the site bordering Wises Lane.  This land had not been the subject of any transport assessment and had not been agreed with either the Borough Council or Kent Highways.

(4)       The advice from Kent Legal Services was that that as the land was only identified for potential development and as the plan had not been formally agreed, the information available was too uncertain to positively conclude that the land had actually been identified for development and that therefore, the “trigger event had not occurred.  The Village Green application had consequently been accepted for consideration. 

(5)       The Commons Registration Officer informed the Panel that Swale BC had objected to the application because of its concerns over the impact on future development.  She explained that this was not a consideration that could affect the determination of the application. The only issue in the County Council’s remit was whether the application met the legal tests for registration. 

(6)       The Commons Registration Officer went on to consider the application in the light of the legal tests. The first of these was whether use of the site had been “as of right.”  The objectors claimed that the site was incapable of registration because it comprised highway land. This had been confirmed by a covering letter from Kent Highways Services, which also contained a disclaimer to the effect that they could not guarantee the complete accuracy of their reply.   She said that it was therefore necessary to establish whether it was indeed Highways land and, if so, the nature of the recreational use on it.  Was the land in recreational use or was it simply the case that the right of passage was being exercised.  

(7)       The Commons Registration Officer continued by referring to the Cheshire East case where the judge had concluded that an application to register two verges between the tarmacked surface in all probability concerned highway lands and that the applicant should be entitled to explore the question of what evidence supported its registration.   This meant that there was nothing in Law to prevent highway land being a Village Green.  It was therefore necessary to filter out the different uses in order to be able to establish whether use of the land had been “as of right.”  

(8)       The Commons Registration Officer turned to the question of whether the land had been used for purposes of lawful sports and pastimes.  The user evidence stated that activities included dog walking, children playing, ball games, picnics and bird watching.  The evidence therefore appeared to constitute qualifying use for lawful sports and pastimes.   Representations made at a public inquiry would assist in establishing the nature of this use in the light of the possible highways status of the land.    

(9)       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 Grove Park Avenue in the locality of the parish of Borden. Whilst Borden Parish clearly constituted a locality, the question was whether Grove Park Avenue as a single street could be said to constitute a neighbourhood.  This question could not be answered on the basis of the evidence currently available.  There was a need for further information to be gathered and tested.    In respect of whether a significant number of residents had used the land, it appeared from the evidence forms that such use had been sufficient to indicate that the land was in general use by the community.     

(10)     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.

(11)     The Commons Registration Officer concluded her presentation by saying that it was very difficult to assess the evidence on paper, having regard to the Cheshire East case. She recommended that the issues should be clarified by reference to a non-statutory Public Inquiry.  

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

(13)     Mr Mike Baldock (applicant) said that he believed that the arguments used by the objectors were desperate in nature and that they had foisted a non-statutory public inquiry upon the County Council.  He considered that the only matter of contention was whether Grove Park Avenue could be considered to be a neighbourhood within a locality.  There was, however, no other alternative means of describing the locality.  

(14)     Mr Hamish Buttle (Quinn Estates Ltd) said that the objectors maintained their objection because the area was critical for their planned development.   He agreed with the evidence provided by Swale BC in respect of a “trigger event” having taken place.

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

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