(1) The Principal Legal Orders Officer briefly set out that the application to register land known as Oakwood Park in Maidstone as a new Town or Village Green had been received on 25 January 2017.
(2) The Principal Legal Orders Officer explained that as part of the recent R (Cotham School) v Bristol City Council 2018 case it had been established that there was no statutory incompatibility involved in registering a school playing field as a Village Green.
(3) The Principal Legal Orders Officer went on to say that the western part of the application site was owned by Kent County Council and leased to the St Augustine Academy. The eastern part was owned by Oakwood Park Grammar School, the land having been transferred to it by Kent County Council in 2011.
(4) The Principal Legal Orders Officer then said that responsibility for determining Village Green applications normally rested with KCC. There were, however, circumstances when it was not appropriate for County Council to do so. In such cases, the application had to be referred to the Planning Inspectorate for determination. This was a legal requirement rather than a matter for the registration authority’s discretion. The circumstances when referral had to take place were set out in Regulation 26 (3) of the Commons Registration (England) Regulations 2014. Referral had to occur where:
“the registration authority has an interest in the outcome of the application or proposal such that there is unlikely to be confidence in the authority’s ability impartially to determine it.”
(5) The Principal Legal Orders Officer continued by explaining that DEFRA had issued guidance to Commons Registration Authorities on how to interpret this legal requirement. This stated that:
“the registration authority should not refer a case simply because it has an interest in the outcome, but where the interest would seriously call into question the registration authority’s ability to determine it impartially…”
(6) The Principal Legal Orders Officer then set out the previous two instances when the Panel had referred cases to the Planning Inspectorate. In February 2011, the application at The Long Field at Cranbrook had been referred as KCC owned the land and it had been the subject of a planning application for a new care home. Similarly, in March 2013, the Panel had referred an application of land at Bishop’s Green in Ashford because KCC (the landowner) had applied for residential development of the site.
(7) The Principal Legal Orders Officer said that the landowner had erected fencing which, through the exclusion of the public, benefitted the County Council’s use of the land for other purposes. This, in turn, meant that there was a clear conflict between the County Council’s positions as landowner and Commons Registration Authority.
(8) The Principal Legal Orders Officer informed the Panel that the objectors (including the County Council’s Property Team) had been actively engaging with the applicants in an effort to seek alternative access arrangements. Even if the applicants were to agree to withdraw the application, there was no absolute right for them to do so. The County Council would need to advertise the proposed withdrawal and the Panel would be faced with a decision on whether to permit withdrawal under circumstances which would be substantially to KCC’s advantage.
(9) The Principal Legal Orders Officer said that a precedent had been set in 2018 in the case of land known as Moorside Fields at Lancaster. This application had been referred to the Planning Inspectorate by Lancashire County Council who had objected as landowners because they wished to use part of the site as an extension to the school building. The fact that the Planning Inspectorate had gone on to determine the application meant (by inference) that they agreed that there was a sufficiently serious conflict between Lancashire CC’s function as the Commons Registration Authority and its capacity as landowner and Local Education Authority.
(10) The Principal Legal Orders Officer concluded by saying that it was his firm view that it would not be appropriate under the circumstances for the application to be determined by KCC and that the correct course of action would be to refer it to the Planning Inspectorate. He added that if the Panel disagreed with the recommendation, a further report would be presented to a future meeting of the Panel with a view to determining it.
(11) Mr Henry Clark (Gen2) said that he had been representing KCC and the two Schools involved in this matter. Fencing had been erected because the fields constituted a safeguarding risk. The landowners had no problem in making a “by right” agreement outside school hours and would be writing accordingly to the local community.
(12) On being put to the vote, the recommendation set out in paragraph 33 of the report was unanimously agreed.
(13) RESOLVED that the application be referred to the Planning Inspectorate for determination.